Hansard and Journals
Employment Relations (Secret Ballot for Strikes) Amendment Bill — In Committee
Employment Relations (Secret Ballot for Strikes) Amendment Bill
Clause 1 Title
DARIEN FENTON (Labour) : I am very pleased to take a call on clause 1 of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I note that the Transport and Industrial Relations Committee, of which I am a member, made a recommendation that the original title, the Employment Relations (Workers’ Secret Ballot for Strikes) Amendment Bill, be changed. It is interesting that the recommendation in the report from the select committee says that the word “Workers’ ” should be removed because that term is not used in the principal Act, and that is true; it is not used in the principal Act. The bill seeks to require unions and not workers to hold secret ballots.
I go back to the genesis of this bill. It came out of Tau Henare’s brain a couple of years ago when he was lying around thinking “What can I do to put forward a bill that makes me look important but doesn’t really have a problem?”. It is a bill that is looking for a problem, and we do not have a problem. He put the word “Workers’ ” in there, because, I presume—I ask the member in the chair, Tau Henare, and he might respond to that—he could not bear to write the word “Unions’ ”. He could not bear to write the word “Unions’ ”.
The Transport and Industrial Relations Committee was right when it looked at this clause, because the title “Employment Relations (Secret Ballot for Strikes) Amendment Bill” actually provides for unions to have the secret ballots, not workers. But it is very interesting. I would like to know what members opposite and the member in the chair think unions are, because, actually, they are workers.
But I maintain that the word “Workers’ ” ended up in the title originally because the member in the chair has had such a torrid history with unions in the past. We all know that he thinks he was a hero in the 1980s of the very militant Clerical Workers Union. He is looking back to those glory days and he has not realised that times have changed an awful lot. I think that he is holding on to some kind of grudge and could not bear to use the word “Unions’ ” in this bill, so he used the word “Workers’ ”.
As I said, the select committee was absolutely right; there is no such thing as “workers” under the Employment Relations Act. I would be really pleased if there were, because the meaning of “workers” is actually much broader than that of “employees”. The meaning of “workers” is everybody, including contractors, who are people outside of the employment relationship, as well as those who are in the employment relationship. The meaning of “employee” under the Employment Relations Act is very specific. It is all there. It is all about the employer-employee relationship, apart from homeworkers, who can be in any kind of employment relationship.
Homeworkers can be contractors, and that goes back to a case that was taken in the 1990s about homeworkers who were being paid less than the minimum wage and were being employed as contractors. It was a famous case—it was Cashman v Central Regional Health Authority—and the outcome of that case was to say that homeworkers are actually employees and, as such, they should have all of the entitlements of an employee.
I was quite comfortable with the word “Workers’ ” in the title, because I thought that if we could introduce the new word “workers” into the Employment Relations Act, then that would bring into employment law a whole new category of working people who are currently not in that law. I have already mentioned dependent and independent contractors, who do not have employment relationships. They are outside employment law, and there are a lot of problems with what is happening to them. They are being exploited in many cases, apart from the very highly skilled workers in that situation. In fact, I tried to do something about workers in the minimum wage for contractors bill, which National members voted down last year.
Phil Twyford: Excellent bill.
DARIEN FENTON: It was an excellent bill that would have seen a minimum wage for all workers in New Zealand, whether or not they were in employee-employer relationships. It would have covered vulnerable contractors such as courier drivers, whom I see on a regular basis, who are not earning the minimum wage and who are being enormously exploited.
So I did not have a problem with the original title, and I have to admit to being somewhat disappointed. Members will note from the select committee’s report that the bill was passed by majority, and Labour put in a minority view. I have to admit to being somewhat disappointed that we did not retain the word “Workers’ ” in the title, because I think it would have opened up a whole new area of law beyond the employment relationship. We would have been able to have a discussion. We would have been able to argue, in this bill and beyond, that workers, whether or not they are in employee-employer relationships, are covered by all the provisions of the Employment Relations Act. I would have really welcomed that.
But I go back to the point about the member’s original title. I would be interested in hearing from the member in the chair about why he put “Workers’ ” in the title and why he did not put “Unions’ ”. I wonder whether there is some sort of prejudice lingering from his time as a Clerical Workers Union organiser in the 1980s. In those good old tough days, that member used to wander into workplaces and say: “Let’s pull the pin. Everybody out!”. He could look tough; he could look really important. Clerical workers, for goodness’ sake! I do have to wonder whether he was just harking back to those days.
As I said earlier, he may still have some residual resentment about unions, because in the end he did not survive in the union movement. I would not say that he was kicked out of the union movement; certainly his reputation is still alive, is it not? People still talk about Raymond Henare. They all talk about what he used to do in the good old days of the 1980s, when he was staunch, but he could not hang around during the 1990s, when it got really tough. In fact, he ended up sidling up to the National Party. He has consequently joined the National Party and helped make sure that things get harder for workers.
I would be interested in hearing a response from the member in the chair about why he used the word “Workers’ ” and not “Unions’ ”, and about whether he is comfortable now with the change that has been recommended by the select committee, which changes the title to the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I want to know whether he thinks that is better than it was, or whether he regrets losing the word “Workers’ ” from it. I want to know who he had in mind when he was talking about workers, why he did not use the word “Unions’ ” in the first place, and whether he was just trying to target a particular group.
I am interested in why he put “Workers’ ” in there in the first place. Maybe he should have put “Companies’ ” in there, as well. That is a debate we will have a bit further on as we get into this debate, because I have an amendment that proposes that companies or employers that are imposing the opposite of a strike—which is a lockout—should have to be subject to a secret ballot, as well.
The title clause is very interesting. It is a very interesting clause, and I am sure that my colleagues will have many other suggestions about what the title could have been. As I said, this is a bill looking for a problem—and there is not a problem. Maybe that could have been the title of the bill. It could have been the “Employment Relations (Looking for a Problem) Amendment Bill”, or the “Employment Relations (Using a Sledgehammer to Crack a Peanut) Amendment Bill”. It could have been the “Employment Relations (National Hates Unions) Amendment Bill”. Who knows?
The title could have been the “Employment Relations (Let’s Make Stuff Up) Amendment Bill”, because there is no problem here. The member in the chair knows that. He knows that there has not been a problem. Actually, since his bill was first introduced in April 2010, I would be very surprised if there had been one single worker in the country who has complained about being forced to go on strike—one single worker who has been forced to go on strike without a secret ballot for a strike, as the title suggests.
I would be interested to know how many complaints the member in the chair has had. Going back to the title, I think that another possible title could be the “Employment Relations (Tau Henare’s Time in the 1980s Clerical Workers Union was a Complete Failure) Amendment Bill”. Who knows? Or it could have been the “Employment Relations (Let’s Go After Workers and Make Life More Difficult For Them Than It Already Is) Amendment Bill”.
CAROL BEAUMONT (Labour) : That was a very useful and informative contribution by my colleague Darien Fenton. I too would be very interested in knowing the views of the member in the chair, Tau Henare, about the title of this bill, the Employment Relations (Secret Ballot for Strikes) Amendment Bill, why the original title had “Workers’ ” in it, and what his views are on the striking out of the word “Workers’ ”. We now have the “Employment Relations”—struck-out “Workers’ ”—“(Secret Ballot for Strikes) Amendment Bill”.
The first part will obviously be a change to the Employment Relations Act. The Employment Relations Act is about the relationship between a number of parties in the workplace. Those parties include unions and employers, and individual workers and individual employers, so both collectively and individually all of those groups are part of the employment relations that take place in a workplace. So it would be very interesting indeed to know Mr Henare’s views on the striking out of the word “Workers’ ”.
Just to follow through on a point that Darien Fenton made, my understanding is that the UK legislation deliberately uses the word “workers”, for the very reason she identified, which is that it is broader than the term “employee”, and therefore covers the multiplicity of relationships that now exist. In fact—and this is certainly true in New Zealand—many of those relationships have been established in such a way as to remove rights from people, so employees have a number of rights that do not necessarily apply to other groups like, for example, contractors. So that term “workers” is a broader term.
We are talking about employment relations. Specifically, this bill is focused on secret ballots for strikes. I would be very interested in getting to the bottom of the question why this bill is even here, and why we have wasted time in the House, in the select committee, and again here in the Committee of the whole House looking at this bill. It is an absolute joke. The submissions we heard made it very clear that there was not a problem to be dealt with. I have to again reinforce the points that Darien Fenton made: if this is a problem, it is a problem that is perceived to be of an earlier time. It is certainly not reflective of the relationships between unions and their members, and employers, in the 2000s. It is not a problem.
Generally speaking, secret ballots exist. Generally speaking, in fact strikes are comparatively rare, and bullying union officials, like the sort of union official that someone like Tau Henare was, are not commonplace. Members opposite might mutter under their breath about whether we can say that, but that is a fact. If members opposite want to hear more about that, I am sure we could give them more information.
I was a union official for many years of my working life, and I never once stood over a worker. I never once put pressure on a worker to take strike action. Those decisions were indeed the decisions of the workers concerned, freely made. That is the only way, in common sense, that we can see how a strike can take place. We cannot force people out the door. We cannot lock the door behind them, unless we are the employers, and keep them out. The reality is that it is harder and harder, in the current environment, for workers to get together collectively to take action to improve their wages and their conditions of employment. It is much harder in periods of high unemployment. It is much harder in the anti-worker and anti-union environment that currently exists, and if National is re-elected, that will get a whole lot worse.
It is not easy for workers to take strike action, but the reality is that it never really has been that easy, because we all know—and just in case members opposite do not know—that if we go on strike, we lose pay. That is quite hard for the average working person, because they need their wages and salaries to live on.
I go back to the title of this bill. The bill is supposedly about secret ballots for strikes. We will be talking a lot more about industrial action during the course of the evening, because striking is a form of industrial action, and of course the flip side of that is the lockout.
KELVIN DAVIS (Labour) : I agree entirely with my colleague Darien Fenton that I would not have been too fussed about the word “Workers’ ” being left in the title of this bill. To me the word “workers” returns a bit of the personal touch to this bill. We have to remember that workers are the people whose sweat and tears are what carries industry and business. By removing the word “Workers’ ” from this title we are just depersonalising this whole bill and making out that workers do not mean a lot.
I do not really understand the purpose of this bill and why it is necessary. We all agree that secret ballots for strikes are fine. It is just the common practice that carries on now, but the removal of the word “Workers’ ” from the title I think depersonalises and desensitises this bill. It is just another one of these bills that National is infamous for—bashing workers and their rights, their conditions, and their pay. That is what this bill is really all about. That is the underlying menace of this bill. It is just another dig—continuing the work of this National Government since it was elected—at workers and their rights. It chips away at the very people whose sweat and industry carries this Government forward.
We have to remember that when we talk about workers we are talking about people. We are talking about the mums and dads who have families and kids, and who work in the factories, the abattoirs, and the various places all around the country. They are people, and we should be looking after them, because it is their work that lifts the country. We have to remember that. We cannot desensitise ourselves to the very people whom we should be helping to make this country go forward.
I believe that there is no reason to remove the word “Workers’ ” from the title and just have the title as the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I think that is pointless. We should keep the word “Workers’ ” in the title so that it reminds us that we are talking about people as we go through this bill.
Again, this bill continues what National has started. We have a litany—in fact, it is a rap sheet—of what this National Government has done to erode workers’ rights. If we put all these pages together, it would be literally as long as my arm. We have the employment relations legislation that introduced the 90-day trial period. This bill is just a continuation of what was started then. That was one of the first pieces of legislation that went through this House during the time when I was first elected to Parliament. This bill is just a continuation—more chipping away at workers’ rights.
Of course, we then look at the pitiful rises in the minimum wage. I think it was 50c in 2009; again, that shows workers getting hammered by this Government through pitiful hourly wage rises. The minimum wage went up 50c the first time, and I think the second time it went up a massive 25c. That really highlights the value that this Government places on workers, on people who do the hard yards, and that word “Workers’ ” is being removed from the title. The Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill denied vulnerable workers their basic rights to minimum breaks during a working day. Workers were attacked once again; a continuation, as I say, of the rap sheet from the National Government. I do not know what National has against workers. I do not know what it has against people, the mums and dads of this country who get out there and try to earn a living to feed their kids, to put a roof over their heads, and to put clothes on their backs. I do not understand why this Government wants to take another little pot-shot at workers, in the form of this bill.
MOANA MACKEY (Labour) : What a waste of Parliament’s time the Employment Relations (Secret Ballot for Strikes) Amendment Bill is. This could be called the “Employment Relations (What a Waste of Time) Amendment Bill”, because that is what it is. What is it about this National Government that the only things it wants to fix are non-existent problems? It does not want to fix all the actual problems that are out there, such as the fact that workers cannot get pay rises and that there are no jobs. It cannot fix those problems, it has no plan, so what does it do? It wants to fix non-existent problems, such as the requirement for unions to hold a secret ballot when workers want to strike. We should not be surprised, because the member in charge of this bill, Tau Henare, is widely regarded as the worst union organiser in the history of the universe—in the history of the universe. It is a title he wears with pride. So this bill is a little bit of revenge. Maybe this is the “Employment Relations (Tau Henare’s Revenge) Amendment Bill”.
Jacinda Ardern: Tau’s last stand.
MOANA MACKEY: Tau’s last stand, as my colleague Jacinda Ardern says. I think there is an element of truth in that. This bill does nothing except wrap up people in red tape, in bureaucracy, and in time-consuming costs, all of which National members are meant to hate, because Tau Henare wants his revenge.
The fact is that we do not need this bill, because unions already have within their rules the allowance for secret ballots where appropriate. Why does the National Government feel the need to interfere in a relationship between unions and their members—unions and their members—who have democratically decided how they will determine when they strike and when they do not, and when secret ballots are held and when they are not? Why does the National Government feel it needs to interfere in that relationship? Why does it need to get involved? There is no problem here. There is no outcry from workers who have been forced to strike when they do not want to. Secret ballots are held all the time, as Mr Henare would know if he was not the worst union organiser in the history of the universe. Maybe he does know. Maybe he does not care. I do not know.
The fact is that this is an utter waste of time. This is the “Employment Relations (Utter Waste of Time) Amendment Bill”. That is quite a high bar given some of the legislation we have seen from this National Government in the area of employment relations. This bill is absolutely pointless, because there is no problem. There is no outcry. This is just interfering by a Government that has an ideological opposition to unions that it cannot get over and that wants to divert attention away from the fact that it has no plan to address the actual problems facing New Zealand workers—the actual problems. If it had a plan, then maybe we would be here passing legislation that would make a difference in people’s lives, instead of legislation that does nothing. It does nothing except impose huge costs. There are a number of industries—I say to Chris Tremain that I think Tau wants to take a call and he is asking for his permission—in New Zealand that are spread across the entire country that have shift workers. It is entirely impractical for them to be able to call all their workers together for a secret ballot. It would impose huge costs. It just would not work at all.
So what Labour says is let the unions sort that out with their members. That is the relationship where they can sort that out. Whatever their members want, they can democratically decide that. A one-size-fits-all approach of the kind we see in this ridiculous legislation tonight will not work. It will not work. It will cost more and it will do nothing.
My colleague Darien Fenton raised a very good point: if we are going to require this of unions, why are we not requiring it of shareholders when a company decides to lock out its workers? Why, on the flip side, are we not requiring all shareholders to have a secret ballot to say whether they agree? When a company decides to lock out its workers, that can have a very negative impact on the reputation of that company. Shareholders might well say that they want to have a say in that, because they may not agree that locking out those workers is the right thing to do. Oh, but no, we do not do that—we do not do that at all. It is only the unions that Mr Henare has in his sights.
KRIS FAAFOI (Labour—Mana) : Taloha ni, Mr Chair. It is a pleasure to speak on clause 1 of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. We are on the title clause, and I guess that people at home may be thinking that the title clause is mundane and boring, but in this instance, as Darien Fenton and Kelvin Davis have mentioned, it holds a lot of the motivation for what this bill is about.
Usually when legislation is passed in the House, it is to give some benefit, or to right a wrong, but the fact that the word “Workers’ ” has been removed from the title shows what National is really all about: if benefit or advantage is to be afforded to anyone, it dare not be to any workers, so the word “Workers’ ” had to be removed from the title of this bill. It dare not be the workers, so the word had to be removed from the title of the bill.
This bill does nothing for the benefit or the advantage of workers, at all, which is a sad indictment on this Government in terms of its Employment Relations Act amendments in this House. We first saw the provisions of the 90-day fire-at-will bill—as we like to call it over on this side of the Chamber—extended to small businesses, and then expanded out to larger businesses, with restrictions on unions, and of course we cannot escape the fact of this Government’s miserly increase in the minimum wage. Yet again, this bill is another change in employment relations that has nothing to do with increasing, or at least protecting, the rights of workers in New Zealand.
I think it is a little bit ironic that we have this bill, which makes it compulsory to have secret ballots when unions want to have strikes, before the Committee today when the previously debated bill, the Education (Freedom of Association) Amendment Bill, is to remove the compulsion from student union membership. It is very odd; it is ironic. I do not know what members want to call it, but at home people may see the muddled thinking behind what this Government is doing, in terms of that.
There is a Eurythmics’ song entitled “Why”; I guess a lot of people at home are wondering why this bill is being introduced. Moana Mackey has already traversed why this legislation needs to be changed, what the problem is, what the issue is, why we are doing this, and what is not working. The answer to those questions is nothing. This bill did not need to be introduced. Secret ballots can already be held at the moment to ensure that when a strike is called, a majority of workers agree with it. So why this bill has been introduced we do not know.
There were a handful of submissions to the Transport and Industrial Relations Committee on this issue. If Andrew Miller of Auckland is watching tonight, I commend him for the first line of his submission, which says: “this bill serves no meaningful purpose in improving industrial relations in New Zealand,”. That is a nice sentence. It pretty much sums up the opinion of members on this side of the Chamber on this bill.
Let me move to the Council of Trade Unions’ submission on this bill, the “Employment Relations (Scratch the Workers’ Secret Ballot for Strikes) Amendment Bill”. The Council of Trade Unions agrees with Labour in terms of the problem that this bill seeks to resolve, and why it has been given priority over so many other issues that are facing Kiwi workers today: “It appears to be designed as more of an attack on workers, their unions”—and Moana Mackey has already traversed the chequered history of Mr Henare with unions—“and the right to organise than as a response to any real problem with the industrial relations framework.”
We have seen the recent example in the UK where the introduction of compulsory secret ballots has caused real problems for unions to exercise their right to take strikes. Two recent challenges to strike ballots in the UK were based on what we would consider to be trifling reasons, and resulted in injunctions preventing strike action. Such challenges not only prevent workers from being able to exercise their freedom of association rights but also—and here is the nub of it—delay resolution of disputes, and can harm and worsen industrial relations. In that respect, this bill could be counterproductive to making sure that any industrial disputes are sorted out in a timely and, in what members on this side of the Chamber would call, a fair manner.
There was one change, I think, at the select committee to this bill. It concerned the fact that secret ballots do not need to take place in terms of health and safety.
LYNNE PILLAY (Labour) : I am standing along with my colleagues. I have to put on the record that I agree with everything that has been said today about this bill, the Employment Relations (Secret Ballot for Strikes) Amendment Bill. It is a waste of this House’s time. One could ask why. The only good point about this bill is that whilst this bill, which does absolutely nothing, is going through, the Government’s agenda of dealing to workers and putting through legislation that takes rights away from workers is not happening. Usually, it is customary that that happens under urgency so that people do not have much opportunity to have a say on it.
Much has been said about the title of this bill. I think, along with my colleague Darien Fenton, that it could be called the “Raymond Henare (I Have a Chip on My Shoulder) Bill”. It seems to me that the Government, one way or the other, has a very, very low opinion—
Hon Tau Henare: I raise a point of order, Mr Chairperson. My birth name is Raymond Tau Henare. I am known in this House and outside it as Tau Henare.
The CHAIRPERSON (H V Ross Robertson): Thank you.
Hon Rick Barker: I raise a point of order, Mr Chairperson. I am a little bewildered by that point of order. Was that a point of order, a point of information, or a point of clarification?
The CHAIRPERSON (H V Ross Robertson): We would have to seek the member’s view for that. I understood it was a point of clarification that was done through a point of order.
Hon Rick Barker: I ask respectfully that you, Mr Chairperson, invite the member to elucidate whether it was a point of order, a point of clarification, or a point of information. I would like to know.
The CHAIRPERSON (H V Ross Robertson): Well, it is up to the member whether he wishes to clarify.
Hon Tau Henare: It was in response to the member speaking. She tried to belittle me by using what she thinks is just a funny part of my name, but it does not. She should refer to me as Tau Henare, which is my name in this House and outside it.
LYNNE PILLAY: I in no way intended to belittle the member, at all. I referred to the member as Raymond because his union experience goes back to when he was an organiser with the clerical union, and at that stage I believe he was known as Raymond. That was why I thought it was appropriate to refer to the bill as the “Raymond Bill”.
The CHAIRPERSON (H V Ross Robertson): Thank you. I say to members that courtesy is contagious. We will all prosper if we stay within the spirit of the Standing Orders. Regarding names, members must refer to members by their title or their name, in this case as it is recorded in the Hansard.
Michael Woodhouse: I raise a point of order, Mr Chairperson. I get to my feet to mention the use of the term for the member who introduced the bill as someone having a chip on his shoulder. It seems to me that this suggests or implies that the member is somehow getting revenge back on the union movement and, therefore, it is an imputation of an improper motive. That appears to be in breach of Standing Order 116.
The CHAIRPERSON (H V Ross Robertson): I thank the member. I know what he is referring to. He is referring to personal reflections, which is Standing Order 116. I say to the member that in a Speaker’s ruling it is up to the member himself to take offence—[Interruption] I am on my feet. Members make disparaging remarks about each other all the time. It is when it is a personal reflection that it is out of order, which is Standing Order 116.
LYNNE PILLAY: I do accept members on the other side jumping to the member’s defence, because it would be fair to say that Tau Henare is the only member of National who has had any experience of workers and unions, be it rather not the most pleasant experience for workers and unions in New Zealand. He is the only member on that side of the Chamber—and I will stand corrected if there is anyone else—who has any real experience of unions or of working with workers—
Chester Borrows: Rubbish.
LYNNE PILLAY: Oh, rubbish, rubbish. Apart from rubbishing, as those members do—
Sandra Goudie: Rubbish.
LYNNE PILLAY: Rubbish, Rubbish—that got a bit of passion! Never mind the views of Sandra Goudie on unions. Those members see that Tau Henare is somehow the authority on what happens in that mystical world of unionism. This is a Government that vilifies workers, vilifies unions, and it actually vilifies people who do not work. It vilifies people who are not able to work when there are plenty of people in New Zealand who, through no fault of their own, cannot work under this Government.
Kris Faafoi: Bullies.
LYNNE PILLAY: My mate at the back says “Bullies”, and I am inclined to agree with him. Those members are bullies, and they are very ignorant of the rights of workers in New Zealand—those who are left—because the Government is steadily decimating workers’ rights. I know that other colleagues have spoken about it.
This member is so obsessed with a secret ballot, as other colleagues have said. I myself as a union official have never ever ran a strike vote without a secret ballot, and I have to say that strike votes are very seldom occurrences. It is really serious to ask workers to withdraw their labour. It is a very serious thing to do, because they will not have any income and a strike has a detrimental effect on the business they work for. So it is a very rare occurrence. A strike ballot is done by a secret ballot. That is common practice. But that member is out of touch. I ask this Committee, and I ask members on the other side to take a call, as to whether—[Interruption] I cannot hear Sandra Goudie’s words of wisdom; I hope she stands and takes a call, rather than shouting from the peanut gallery. This is based on fear. This member’s obsession with secret ballots is probably because he had to run them. Having him as a union official would be a dreadful, dreadful situation for a worker in New Zealand.
Hon Member: Ha, ha!
LYNNE PILLAY: It would. I would say that workers in New Zealand would insist, if that member was the organiser, on having a secret ballot because if they did not do what he wanted, he would be looking in that mean way he has. All of us have seen it. We have been trembling in our boots on this side of the Chamber, with his stony glares at us and his threatening manner. We all know about that. I know he is looking like butter would not melt at the moment, but we know the fearful side of Tau Henare. That is why it is really important that workers under his watch—
Hon TAU HENARE (National) : I follow an appalling contribution to the Committee from Lynne Pillay. Not only did that member get personal but she thought she knew her subject. Well, let me tell this esteemed Committee that the worst union organiser in this country’s history was Fintan Patrick Walsh. That is right—Fintan Patrick Walsh. He used to throw people off the bloody—excuse me, sorry, I apologise—ferry. He was an appalling unionist, and not one of those members on the other side of the Chamber will get up on their hind legs and say otherwise. Sorry, but Fintan Patrick Walsh was one of the worst unionists this country has ever, ever seen.
Let us talk about Moana Mackey. She is here only because she took over some sort of rogue dynasty from her mother. She took over from her mother as some sort of union official down on the East Coast, for goodness’ sake.
Hon Steve Chadwick: I raise a point of order, Mr Chairperson. I understand we are up to clause 1, and I have not heard the member in the chair refer at all to clause 1. He has given just a rather personal tirade—which we on this side of the Chamber quite enjoy, actually—and that little tirade about history does not seem to be of much relevance.
The CHAIRPERSON (H V Ross Robertson): I thank the member for her contribution. A number of Speakers’ rulings say that with any speech in reply the speaker has some time to rebut some of the accusations against him or her. But I would hope that the member would shortly come to answering the questions that were raised.
Hon TAU HENARE: Well, now that I have dealt with the last speaker from over there, let us have a talk about Mr Faafoi. He says this Employment Relations (Secret Ballot for Strikes) Amendment Bill—
Lynne Pillay: The member’s a bully.
Hon TAU HENARE: The member wants to call me names. Oh dear! How sad! I am really hurt. I am really hurt. Lynne Pillay has spent the last 10 years in this place, and she has never ever—ever—in the last 10 years said anything worthwhile on the floor of the House. It amazes me. It is no wonder she lost to Paula Bennett. It is no wonder that Paula Bennett is the member for Waitakere, and will continue to be—
Jacinda Ardern: I raise a point of order, Mr Chairperson. I really question the relevance of this at this point—we are debating clause 1—particularly given that the member began his speech by questioning the personalisation of this debate.
The CHAIRPERSON (H V Ross Robertson): Thank you. I again thank the honourable member. It has been rather robust debate tonight. When people make interjections on someone who has the floor, they can expect some feedback. But I ask the member now to come to the title, and to answer some of the questions.
Hon TAU HENARE: If this bill is such a waste of time, why have we spent the last 40 minutes listening to members on that side say the bill is a waste of time and not worth debating? Why have we been hearing from those members, who have been getting up and down for the last 40 minutes to talk about a bill they think is a waste of time? Well, I can tell the Committee why. Mr Faafoi said this bill does not increase the safety of workers. I say to Mr Faafoi “Guess what? It does.” It protects the worker from the bullying tactics that we all know are out there—the bully-boy tactics from the unions. That is what this bill does. It protects.
The funny thing is I think about Christchurch, where all the people have insurance—well, most of the people have insurance. A secret ballot, whether of a union or of a country, is insurance against intimidation. That is all this bill is. It is insurance. It is insurance against intimidation.
Moana Mackey: Should shareholders get secret ballots? Do they have to do secret ballots, as well?
Hon TAU HENARE: It is insurance against the bully-boy tactics of the likes of Moana Mackey and her mother.
Kris Faafoi: That’s rather rich.
Hon TAU HENARE: That is what this bill is all about. And, while I am on my feet, I say that those members get up and say—
Kelvin Davis: Seconds out!
Hon TAU HENARE: —that the word “worker” is being pulled from the bill. Well, here is the reason why, I tell Mr Davis and Mr Faafoi; here is the reason why. If they knew what was in the principal Act, they would realise that the word “worker” does not appear in the principal Act. It was the Labour Government that passed the principal Act, and nowhere in that Act of Parliament, which was passed by “Lady Muck”, Helen Clark—she passed that bill—
Hon Steve Chadwick: I raise a point of order, Mr Chairperson. I take offence at the reference to the previous Prime Minister. I would like the member to withdraw and apologise.
The CHAIRPERSON (H V Ross Robertson): No. The member cannot take offence at that. People make disparaging remarks about each other all the time. This is a robust Parliament. But I would ask the member to try to be careful. Courtesy, as I said, is contagious.
Hon TAU HENARE: Well, it would have been if they had been courteous.
Nowhere in the principal Act does the word “worker” appear. Work out why Kelvin Davis got up on his feet and said that that was an attack on workers—that it was a clear attack on workers’ rights that the word “worker” had been pulled from my bill. But the word does not even appear in a bill that was put forward and turned into an Act by a Labour Government. Work that one out. My question to Kris Faafoi, who could not even find his way to McDonald’s in 1960, or whenever it was—
Kris Faafoi: You did.
Hon TAU HENARE: Absolutely—absolutely! I know where they all are, and I am quite proud of that fact.
The last thing I will say, for the moment, is this. How horrible members on that side of the Chamber must feel. They think that this side of the Chamber does not have any unionists, does not have any people who have worked with workers. Well, I have news for Labour: most of the members on this side either have been delegates or have helped out during their work experience, way back—
Lynne Pillay: Which of those ones?
Moana Mackey: Name them!
Hon TAU HENARE: Oh, in the abattoirs people have worked in, in the hospitals people have worked in, they have belonged to unions, and they have also been delegates on the shop floor. That is not the preserve of the left. It is about representation. It is about making sure that people are OK. That is it—end of story. I look forward to some pearls of wisdom from the little miss from Waitakere, Lynne Pillay, and others, as this debate goes on.
JACINDA ARDERN (Labour) : I feel as if I am in a vortex at the moment. The member in the chair, Tau Henare, spent quite some time trying to explain to the Committee why the Employment Relations (Secret Ballot for Strikes) Amendment Bill is incredibly important to him and to the Government, yet he is the only Government member who has spoken on the bill. If there is such passion on that side of the Chamber, I really would welcome a call from, perhaps, Sandra Goudie, who gestured that she had once been a union delegate. I would genuinely like to hear Ms Goudie’s delegate stories. I would genuinely like to hear them. Perhaps she was a union delegate for the mangroves of the Hauraki Plains! I really would welcome hearing from her. In fact, I would welcome any Government member speaking to this bill. I believe that they would only reinforce the eloquent comments made by the member in the chair, who did refer to his bill once or twice once he was done with his insults.
But I have an actual question for the member in the chair. I would really like to understand the origins of this bill a little better. He did allude to his knowledge of the union movement and his history in the union movement, but actually he is trying to debate a point that we are not debating. We are not debating that there is anything wrong with the use of secret ballots. In fact, the reason that we, on our side, allowed this bill to go to a select committee in the first place was that we acknowledged that secret ballots were common union practice. We therefore had no fear of this issue being discussed. But it became more and more obvious to us that this legislation was unnecessary, and that, in fact, it had the ability to create a distortionary effect. We are not debating the relevance of secret ballots here, I would say to the member. So I would like to hear, from his perspective, some genuine examples, some real-life, recent cases that, obviously, have been brought to his attention. I fail to see why he is driving this bill, unless he has had some experiences or cases brought to him. Perhaps if he shared those with the Committee, that would improve our understanding of his motives, because at the moment I am not clear on his motives in relation to this bill. I think it is interesting to dig down beneath it. As we on this side have said, secret ballots are common practice. We have members on this side who have recent experience of that process amongst workers.
So I would really like the member to explain in this title clause debate what is driving this legislation. If I were to suggest a new title for this bill in this debate, maybe it would be “Bill Looking for a Problem Bill”, because at the moment I have not heard clearly articulated what the issue is. I can see the Chair looking at me graciously, expecting me to speak directly to clause 1, and that is why I will bring in, at this point, my ridiculous alternative titles—if the Committee can bear with me. So there is one: “Bill Looking for a Problem Bill”. I would also like to throw out the option of “Bill Reinforcing Old Prejudices Bill”.
Perhaps the title should be “Contradictory Bill”, because, ultimately, the member has tried to tell us that somehow this bill will improve the process. We are saying that secret ballots already occur; he is trying to require them by legislation. To me that seems slightly contradictory to the usual perspective that a member of National would take on such matters. If we can prove that it is happening generally, why would the member wish to entrench it unnecessarily into law and to create unnecessary red tape? National prides itself as being a bastion against red tape, yet when it comes to the union movement it seems to take a completely different view. Perhaps instead we could call the bill the “I Didn’t Wish to Explore Voluntary Codes Bill”, because every other time I have seen the potential for regulation come in, the first thing that someone who looks at these things from the perspective of business would say is “Let us do it as a voluntary code. Let us see whether we can bring it about through compromise, through a collective approach.” Actually, that is what the unions do. They have their own democratic way of operating. They abide by their own written constitutions. That is how it works.
Again, I ask any member of National to contribute to this debate.
MICHAEL WOODHOUSE (National) : I am very happy to take a call on the Employment Relations (Secret Ballot for Strikes) Amendment Bill, but I first have to reflect on the most outrageous comment that has been made in this House for a very long time, which came from the member Miss Mackey. She said in her first call that this bill is a complete and utter waste of time. That was from a member of the party that has spent 9 months filibustering on members’ days on a bill it supports. That is an outrageous waste of taxpayers’ money—I think it has been mentioned that it is $453,000 an hour—Wednesday after Wednesday after Wednesday this year. We have not had a single draw of a Labour member’s bill from a ballot in 2011—not one. Do members know why they do not care? It is because they do not have any ideas for a member’s bill. The only Labour member’s bill in the last ballot in November 2010 came from the Hon Darren Hughes. I do not know where that is, but there has not been a single Labour member’s bill in the ballot in 2011. For Miss Mackey to accuse Tau Henare of wasting House time is completely outrageous.
I will go on to what Miss Darien Fenton said about people on this side of the House—in fact, she has been misquoted. I do not believe she said there are no union delegates on this side of the House. She said there are no people on this side of the House who deal with unions. Well, I have news for that member: employers deal with unions every single day. She should not stand here and say that employers do not know what unions want, because unions make that very clear. Those employers that have good relations with their unions get to deal with them on a daily basis.
So why have the bill? Jacinda Ardern asked that very good question. This party and the member who introduced the bill, Tau Henare, believe in workers’ rights. We do not believe in union rights and the choice of the unions to ride roughshod over their members at any will. Talk about being in a vortex. This is the first line of Labour’s minority view: “The Labour Party is supportive of secret ballots for strike action, because it largely reflects current practice …”. But Labour does not want to entrench it in legislation. Is Labour the new neo-liberal party of New Zealand? ACT’s demise has led to the new neo-liberal “No Need to Pass Legislation Party”. But, hang on, if Labour was so keen on choice and flexibility, why would it have the Employment Relations Act in the first place? It is a fudge. It is opposition for opposition’s sake.
But I have realised who has the greatest to fear from a secret ballot right now, not only in this House but in the whole country. It is the Leader of the Opposition, Phil Goff. What would happen if a secret ballot was allowed in the Labour Party caucus this week? I ask myself how many of those members would be prepared to stand up in their caucus when a ballot was called and say whether they support the Leader of the Opposition. It is the ultimate dilemma—whether to support their leader when the time comes. It will not be long; there are 81 days to go. It will probably be on day 82, because nobody has the courage to stand and challenge the Leader of the Opposition. Nobody has said they will they do that. So what will these members do? Will they stand and support him? Then, if he loses, after his demise, what will that mean for their future? Are they not going to stand and support him? What if he passes muster? What if he wins the ballot? If anybody needs a secret ballot right now, it is the members on the other side of the Chamber. It is a complete paradox. They do not support this bill, but they do support secret ballots. Reconcile that.
BRENDON BURNS (Labour—Christchurch Central) : I am going to completely ignore—completely ignore—the previous speaker, Michael Woodhouse, because that is what his speech deserves, but I do want to pick up on the comments of the member responsible for the Employment Relations (Secret Ballot for Strikes) Amendment Bill, Tau Henare. I acknowledge that in response to a comment from one of my colleagues that Tau Henare was the worst union delegate secretary ever in the history of the country, he stood up and said that that was not true and that it was Fintan Patrick Walsh. That was the comparison he made for himself. That is what he told us. We have the “Black Prince”, who I acknowledge was worse than Tau Henare as a union delegate secretary. He was the “Black Prince”, who worked with the employers against the interests of workers in issues like the 1951 waterfront lockout. So to make that comparison rather underscores the comments made by my colleagues.
Mr Henare also referred to bullying tactics, but he talked hardly at all about this bill, which I think rather underscores the futility of it. We have had people who have been union representatives and who have overseen ballot after ballot say to the Committee that it is the practice—and I as a former union member can confirm—that ballots are almost always held in secret. I contrast this bill with the previous bill, the Education (Freedom of Association) Amendment Bill, where the Government was not prepared to allow compulsion in respect of student union membership. But suddenly this following bill says that secret union ballots must be compulsory. What a contradiction in terms that is. That is the contrast there.
Mr Henare also made an extraordinary comment that many members of the National caucus have been union delegates. I found that to be an extraordinary comment, and I would like to see any member opposite stand up and confirm his comments. I wonder whether he was referring to people like David Carter, who perhaps represents the “Union of Multiple Farm Owners”, or maybe to Wayne Mapp, who must represent the “North Shore Workers Union”, or maybe he could have been referring to Maurice Williamson, the well-known union delegate and representative for the “Pakuranga Geeks and Related Trades Union”. That would be a union that I am sure would never want to see a compulsory ballot, because they would want to do it on their iPads. They would not want to have compulsory ballots; the “Pakuranga Geeks and Related Trades Union” would want to have their votes taken by iPad, which is rather different from walking into a trades hall or a conference centre to give a vote. I wonder whether Tony Ryall—
Moana Mackey: Title.
BRENDON BURNS: I will come back to the title of the bill, which relates to the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I say thank you to my colleague Moana Mackey for reminding me that we are debating the title of this particular bill. Following on from that, this bill is about trying to enforce what is already the practice in union ballots today, which is to have a secret ballot. The situation is not one where one size fits all. The point has been made in respect of a decision by shareholders to lock out workers that they should be given the same requirement. If we are to have equity across this issue, then surely this bill should extend to shareholders in a company. Where shareholders in a company have made a decision to lock out workers who have decided to take a strike because of the ballot they have taken—almost certainly in secret—then they should be compelled under the same legislation that Tau Henare has brought into the House.
I find it absolutely extraordinary that we have this member’s bill. It is clear that there has been an instruction to the National caucus to find a member’s bill; it does not matter whether or not it is of no consequence at all. We have the Military Manoeuvres Act Repeal Bill, and we have this bill. These bills are an indication that the National caucus has been told to get a member’s bill up. I will take the word of colleagues who have been in the union movement—like Darien Fenton, like Lynne Pillay, like Carol Beaumont—that the practice is there, but there has to be a choice for workers to make their decisions in respect of these ballots. We can see the potential for this bill to be used as a weapon against workers, not as a tool to protect their rights in the workplace. That would be very much in line with the anti-worker sentiment of this Government.
Sandra Goudie: Mr Chair—
The CHAIRPERSON (Eric Roy): I will give the call to Sandra Goudie, but before I do so, I say that the Chair is desirous of having some debate on the title, which is actually what this debate is about. I just caution the Committee that we actually should be debating the title, and I would prefer that we do that. Then we can make some progress.
The CHAIRPERSON (Eric Roy): I am sorely tempted, but Darien Fenton assured me by sign language that she was going to speak on the title.
DARIEN FENTON (Labour) : Absolutely, Mr Chair. Thank you very much for giving me an opportunity to talk about the title of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I want to go back over a couple of things, particularly in relation to Tau Henare’s response and to the change in the title, where the word “Workers’ ” has been removed. I make the point that the original title of the bill, the Employment Relations (Workers’ Secret Ballot for Strikes) Amendment Bill, was put forward by the member himself, so I thought it was a bit ridiculous for him to come back and argue that it was removed and to say that we do not understand the Employment Relations Act.
What is really interesting is that if the word “Workers’ ” had remained in the title, it would have included a whole group of workers who are now excluded as employees. Just so members are not confused, I say that I am referring to the recommendation from the Transport and Industrial Relations Committee that the word “Workers’ ” be removed because there is no reference in the Employment Relations Act to that word. A whole group of workers has now been excluded from the definition of “employee” under the Employment Relations Act. If the word “Workers’ ” had remained in the title of this bill, they would be covered by it. Guess who I am talking about. Who am I talking about? I am talking about any person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer, and any other person engaged in film production work. That whole group of workers, employees, or people had the right under the Employment Relations Act—until National decided that they should not have the right—to go to court to have the court determine that they could be employees under this Act. They were, in fact, workers. Because they are called workers and they are outside the Employment Relations Act, they actually have no rights—no rights at all.
It is quite perverse, in a way, when we think about it. This Employment Relations (Workers’ Secret Ballot for Strikes) Amendment Bill, as it was called, actually applies to employees. That is the point that the select committee made. The Employment Relations Act applies only to people in the employee-employer relationship. So it is an interesting question, I think. Those workers in the film industry and video production industry have now been excluded from rights as employees—well, I do not think they have the right to strike, but there is an argument that the Trade Unions Act 1908 still applies. The Trade Unions Act 1908 actually applies to workers. They have the right to form a union and they have the right to strike, and it cuts across the Companies Act, the Commerce Act, and other things. It says they are not allowed to collaborate, because they would be committing some kind of conspiracy.
I think it is a very, very interesting title. I am still very interested in why the member in the chair said that “Workers’ ” came out because it does not apply, when he put the word “Workers’ ” in the title in the first place. I have yet to hear from him why he did that and what he had in his mind. Did he have in his mind that a secret ballot for strikes should apply for all workers, not just employees? There is a huge difference under law. Was he implying by removing the word that workers who are outside the employment relationship under the Employment Relations Act should have the right to strike? Was he implying that? Is that what he had in mind when he included the word “Workers’ ” in the title? I would be interested in his response to that, because we have asked a question about that. I think it is a very interesting topic, and I think it deserves a lot more exploring—if not tonight, then we want to have other opportunities to talk about this.
The fact is that we now have an Employment Relations Act that applies to employees only. Many, many workers are now outside that relationship, and they have absolutely no rights at all. It is something I am quite passionate about.
Hon Steve Chadwick: I don’t think National’s thought about it.
DARIEN FENTON: I am sure, except that by taking employees who work in the film and video industry out of the Employment Relations Act, National made them into workers, and Tau Henare’s bill, as it was originally titled, would have included workers. I think it is a very interesting question.
I would still like to hear from the member in the chair about why he put the word “Workers’ ” in the original title, and whether he agrees with the change that the select committee has made. He is right in saying that the word “Workers’ ” does not appear in the Employment Relations Act—
|Ayes 63||New Zealand National 57; ACT New Zealand 5; United Future 1.|
|Noes 56||New Zealand Labour 42; Green Party 8; Māori Party 3; Progressive 1; Mana 1; Independent: Carter C.|
|Motion agreed to.|
|Ayes 63||New Zealand National 57; ACT New Zealand 5; United Future 1.|
|Noes 56||New Zealand Labour 42; Green Party 8; Māori Party 3; Progressive 1; Mana 1; Independent: Carter C.|
|Clause 1 agreed to.|
Clause 2 Commencement
Kelvin Davis: For a century.
KEITH LOCKE: No, I think 10 years would probably be a good start. I say that because I think the Employment Relations (Secret Ballot for Strikes) Amendment Bill itself offends basic rights. There was a discussion previously on the title, which unfortunately the Green Party did not get a call on.
Hon Tau Henare: You weren’t here.
KEITH LOCKE: I was here. It is an unbalanced bill. It talks about workers’ secret ballots for strikes, but it does not take into account the other side of the industrial equation—that employers should also, if there is going to be a secret ballot, have a secret ballot, as is proposed in a further amendment that we will be discussing later, whereby shareholders should be balloted secretly before they lock out workers, because there is equality in the Employment Relations Act on strikes and lockouts in that respect.
I think the commencement date should be put out for 10 years, because, if we look at the justice of it, we should ask why the State should control voluntary organisations. That is what this is about. In spite of National members talking about freedom and nanny State and all the rest of it—all of the things they have talked about over the years—this is the ultimate nanny State measure. The State is controlling such an intimate thing as how people in a voluntary organisation can decide collectively whether they should go on strike. That should not be the role of the State.
In fact, let us look at the practicalities of the situation. I have been in several situations where there have been strikes. Sometimes there have been secret ballots and that has been very good. Sometimes it has been impractical to have secret ballots. That is the situation and that is the way submissions went to the select committee. The Service and Food Workers Union and, I think, the Unite union, put across the idea that in some of the industries they organise, such as fast food outlets and whatnot, it is impractical to have a secret ballot, so it should not be in law. The Green Party completely opposes this provision being in law. It is impractical and will act against the interests of unions.
Also, as was mentioned in some of the previous discussion, it will allow, because it is in statute law, employers to try to trip up workers all the time. Employers may say: “Well, this person didn’t get a note, and this worker didn’t get a notice of the secret ballot.”, because that worker might have shifted address or something. They may hold up the strike action of the union concerned until that is all sorted out in a court. Because the employers always have more money than unions, they can also bankrupt the unions by dragging them through repeated court proceedings about whether a strike ballot was properly implemented. This is highly prejudiced against one side of the industrial disputes—that is, the workers. I think that putting the implementation of this bill out for 10 years would give us time to think about it. It would give time for members of this Parliament to go down to workplaces to talk to workers, go into fast food outlets, talk to the Unite union, talk to the Service and Food Workers Union, and talk to employers about whether they want to have an imposition on them of all their shareholders having a secret ballot before there is a lockout, as might be the case if Darien Fenton’s amendment is passed in relation to clause 4. There is still water to go under the bridge and I think that 10 years’ worth of water going under the bridge would be quite good.
CAROL BEAUMONT (Labour) : I have to say that I agree with the member Keith Locke. I think that the Employment Relations (Secret Ballot for Strikes) Amendment Act should come into force some time far, far away from 1 year after the date on which it receives the Royal assent, which is what is currently in the bill. Perhaps 10 or 15 years after the date on which it receives the Royal assent might not be such a bad idea, because this is absolutely ridiculous legislation. But it is more than just ridiculous. The logic behind it—as far as I can tell, and I use “logic” in the broadest sense of the word—is fundamentally flawed.
This is a bill that will put in place secret ballots for strikes—only for strikes, I might add—when, in fact, that is what generally occurs. This is based on some premise of a time past. I just thought I would elucidate to members opposite what a strike is, because we are talking about bringing into commencement in a year’s time legislation that will require secret ballots for strikes. Now a strike can be a number of things. It is the “walk out of the door” scenario that people think of—the full withdrawal of labour, but it is other things as well. It is also refusing or failing after any such discontinuance to resume or return to employment. It is about breaking employment agreements. It is about refusing or failing to accept engagement for work in which one is usually employed, and it is about reducing normal output or the normal rate of work.
I go into some depth on this word “strike” because it is not an easy thing to do. It has never been an easy thing for people to do. People think about it and make a decision to strike in very extreme circumstances—usually when they are trying their level best to improve their wages and conditions of employment, and that has become tougher and tougher. As the economy has tightened up under a National-led Government, and when employers feel, perhaps, more emboldened to play a harder ball, if you like, it has become tougher for unions to negotiate collective agreements and get reasonable outcomes for workers. Striking is a last resort. It has always been a last resort to try to improve wages and conditions of employment.
This legislation, which would come into force a year from receiving the Royal assent, as provided for in clause 2, the commencement clause, would require strike action—and that is quite a broad thing, as I have just outlined—to have a secret ballot before it could happen. And that secret ballot could be challenged by employers. Later on we will talk about that a little bit more, but many of us can see that this could provide grounds for litigation driven by employers trying to stop unions taking action to try to improve their wages and conditions of employment. So, again, that is another reason to push out the commencement date of this bill, because it will lead, potentially, to significant legal challenges by employers hell-bent on stopping workers improving their wages and conditions of employment through taking industrial action—through taking strike action.
Now, of course, the other thing this bill does is that it focuses only on one side of the coin. Industrial action has two parts: strikes and lockouts. We can see that they are one part after the other in the Employment Relations Act: section 81 is around the meaning of strikes and section 82 is around the meaning of lockouts. But that is not affected by this bill, so the commencement would bring into force a regime that applies only to one part of the industrial relations landscape, not the other, which is the lockout. The lockout is effectively where employers take actions that stop workers doing their job and that also therefore impacts on these people’s pockets. It means that they are not earning money. Certainly there have been some very, very ugly lockouts in this country’s history and I am not talking just about the 1951 lockout, but, much more recently, the Progressive Enterprises lockout—and that would not require any sort of ballot. It did not require any sort of ballot. A similar, very large-scale lockout like that, which put enormous pressure on to very low-paid workers, would not, under the provisions of this bill, require any form of ballot, any form of consultation, and the management of a company could just go ahead.
KELVIN DAVIS (Labour) : Keith Locke says that we should push the commencement date of the Employment Relations (Secret Ballot for Strikes) Amendment Act out 10 years, and Carol Beaumont says 15 years. I say let us push it out a century, because even in 100 years’ time we will not have more than a handful of people complaining about the whole secret ballot thing. In fact, why do we not just push it out a millennium—why do we not just push it out a thousand years, because in that time there will still be only a handful, if that, of people who actually feel the need for this bill other than Tau Henare and perhaps a few thousand of his descendants who will want to maintain Papa Tau’s legacy of giving it to the workers.
Keith Locke was right: this is about the National Government interfering in the intimate workings of a voluntary organisation. Now why on earth would it want to do that? And who is going to be next? Meals on Wheels—“Sorry, you can’t have cabbage on Tuesday, you’ve got to have peas.” This will be the National Government’s next step in interfering in other voluntary organisations and what they do. After that, it will be Victim Support, after that it will be the Boy Scouts, and after that, who knows? The world is at Tau Henare’s mercy when the Government is interfering with voluntary organisations around the world. It will be Volunteer Service Abroad next: “Sorry you can’t go to Tonga for your voluntary service abroad. You will have to go to Kiribati.”
This will be the start of something big for Tau Henare. Let us start with the unions. Let us interfere with the workings of that voluntary organisation. Let us deal to the unions, and then we can take on the rest of the voluntary organisations.
It is a nonsense bill. There is no need for this bill, as we have already outlined in the title clause debate. As well, there is an imbalance here. There is a lack of fairness. We want to know what it is about National members that they do not understand fairness. National’s tax is not fair. It is tax cuts for the wealthy. Here is another thing that is not fair. Unions will have to have secret ballots, yet employers will not.
The CHAIRPERSON (Eric Roy): Commencement.
KELVIN DAVIS: Commencement. Again, within 1,000 years of the commencement of this bill employers will not have to conduct secret ballots of their stakeholders when they want to lock out these horrible union workers. Not within 10 years, not within a decade, not within 15 years, not within a century, not within a millennium will employers have to do what Tau Henare wants the unions to have to do, and that is hold these secret ballots. For what reason? For what purpose? Oh, the bullying, he says. Well, there is a story about the pot and the kettle, and I am not sure which one Mr Henare wants to be, when it comes to bullying. His overbearing attitude is exactly what he is accusing unions of having.
Hon Maurice Williamson: What’s wrong with a secret ballot?
KELVIN DAVIS: What is wrong with it? Fairness, I say to Mr Williamson. There is nothing fair about this, when we are expecting a voluntary organisation to have to have secret ballots, but National does not expect employers to hold secret ballots of their stakeholders when they want to lock out workers. It is the fairness.
There is a lack of fairness, and again, National does not understand fairness. Its tax cuts were for the wealthy. It was not fair that the wealthy received a $1,000 a week tax cut and the low-paid workers received something like 25c an hour in their tax cut.
I feel it does not matter how far out we push the commencement date. It will not make a difference whether it is 1 year, as stated in the bill, or whether it is 10 years, 15 years, a century, or a millennium. It will not make a difference because there is not a problem. As Jacinda Ardern put it so eloquently, this is a bill looking for a problem. There is nothing here that will be remedied by commencing the bill at any stage.
KRIS FAAFOI (Labour—Mana) : I thank you very much, Mr Chairperson Roy, for giving me the opportunity to talk to the commencement clause of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I feel like a bit of an auctioneer, because first we heard that the bill should come into effect in 10 years, then 15 years, and now we have heard 1,000 years—sold to Mr Davis. This bill should not come into effect at all. It will take considerably longer than a year to figure out why this bill is here, at all, and to figure out the motivation for it and what positive effect it will have on any workers who are slogging their guts out and having this measure forced upon them. It will take a considerable amount of time—more than just 1 year, which is provided for in clause 2, the commencement clause—for us to sort out why this bill is here. Mr Davis talked about how on many occasions we have asked what the motivation for the bill is, what the problem is, and why this bill needs to be passed. It will take us considerably more than a year to figure out why, on the grounds of democracy, National thinks this bill needs to be passed.
We have no problem with secret ballots. They are widespread at the moment, and have been well used by unions to adjudicate whether a strike is to be called or effected. But there is some puzzlement on this side of the Chamber as to why the Government wants to make it compulsory for unions to have secret ballots for strikes to be called.
On a number of levels it is impractical. Keith Locke in his contribution earlier talked about how difficult it would be in practical terms to organise a secret ballot for the likes of fast-food workers, such as people who might work at restaurants like McDonald’s, which opened in Porirua in 1976. It is also impractical in terms of the longstanding history unions have already of making sure that these secret ballots happen, in order to give their members a say.
There were a number of submissions on this bill from the Employers and Manufacturers Association and also, if I remember correctly, from Business New Zealand. They wanted to impose an amendment to the bill to make sure that for the vote to strike to be successful, the threshold for the secret ballot would be 75 percent. Therein lies some of the motivation as to where the benefit from this bill would lie. In relation to the commencement, we will need a lot more than just 1 year to sort out why this bill is needed and how it will protect the rights of workers, as Mr Henare said when we were debating clause 1.
I think it was also Mr Locke who commented on Mr Woodhouse’s contribution, in which he said that he thought we should make secret ballots compulsory. I agree with Mr Locke that the bill is nanny State and it is controlling a voluntary organisation, and we should not have to do that, especially when at this stage, as far as we on this side of the Chamber are concerned, the unions that use secret ballots are using them quite effectively and fairly. So again, we ask why this bill needs to be passed. Again, we will need a lot more than just 1 year from the bill receiving the Royal assent to figure out why this bill is here.
This bill, in essence, will enforce compulsory secret ballots on unions when calling a strike. There has already been some talk about this bill changing the very nature of the definition of a strike. A strike will not be able to be called unless a secret ballot is taken, and that fundamentally changes the rights of workers in terms of their ability to take industrial action. If a ballot is not taken but strike action is called, then a union could be tied up in lots of red tape and, potentially, big legal bills, because their action could be deemed illegal. That is one of the serious dangers contained in this bill and, again, that is why we will need something like 1,000 years, I say to Mr Davis, to sort out why this bill has come before the House. The commencement of this bill should not be as stated in the bill at the moment. One year is simply not enough time for us to sort out this mess.
We have had problems with the title. Mr Henare has not admitted to the fact that he botched up the title, and included workers in the title when they are not included in the primary legislation. But, again, the commencement of this bill should not be 1 year following its receiving the Royal assent.
|Ayes 63||New Zealand National 57; ACT New Zealand 5; United Future 1.|
|Noes 56||New Zealand Labour 42; Green Party 8; Māori Party 3; Progressive 1; Mana 1; Independent: Carter C.|
|Motion agreed to.|
- The question was put that the amendment set out on Supplementary Order Paper 195 in the name of the Hon Tau Henare to clause 2 be agreed to.
|Ayes 63||New Zealand National 57; ACT New Zealand 5; United Future 1.|
|Noes 56||New Zealand Labour 42; Green Party 8; Māori Party 3; Progressive 1; Mana 1; Independent: Carter C.|
|Amendment agreed to.|
|Ayes 63||New Zealand National 57; ACT New Zealand 5; United Future 1.|
|Noes 57||New Zealand Labour 42; Green Party 9; Māori Party 3; Progressive 1; Mana 1; Independent: Carter C.|
|Clause 2 as amended agreed to.|
Clause 3 Principal Act amended
DARIEN FENTON (Labour) : I was really looking forward to taking a call on the previous clause of the Employment Relations (Secret Ballot for Strikes) Amendment Bill, but I will make do with this one. I think it is worth discussing exactly what we are amending, under clause 3, of the principal Act—that is, the Employment Relations Act. We are amending quite a significant part of the rights of employees under the Employment Relations Act. It sounds really simple and easy to say that there should be a secret ballot for strikes and we should put it in this amendment. We might ask who has a problem with it as it is about democracy, and so on, but I do not think that members opposite understand what this will involve, and the change and red tape and all sorts of—
Hon Steve Chadwick: Compliance.
DARIEN FENTON: Compliance—absolutely. The Hon Tau Henare did not speak on his Supplementary Order Paper 195, but it amended clause 2 and it goes on to make some other amendments. This bill will require unions to amend their rules because the principal Act, the Employment Relations Act, is being amended. Unions have to be registered under section 14 of the Employment Relations Act. They have to be registered as unions. There is a whole provision in the Act that says when they are entitled to be registered as unions. There are a whole lot of rules about them having to be democratic, not unreasonable, not unfairly discriminatory, not contrary to law, and, interestingly, independent and at arm’s length from employers. Yet here we have a provision to amend the principal Act that will allow employers to interfere in the democratic processes of unions.
Unions will have to change their rules. Because it has been a while since the member in the chair, Tau Henare, has been involved in unions, I do not think he understands the requirements of the Incorporated Societies Act and the provisions in the Employment Relations Act as to the requirements a union has to meet in order to change its rules. Unions have to get their members to approve those changes. For the union that I come from, the Service and Food Workers Union, it would involve something like 50 stopwork meetings throughout the country. That means arranging with employers for workers to be released, and that is not always easy. It is a cost on employers. It also means getting the workers to the meetings so that they are able to vote on the changes to the rules that this bill will require. This bill will require that unions change their rules so that there is a provision, as set out in Supplementary Order Paper 195, relating to the process for holding a secret ballot.
I think that unions could live with that. Certainly, I will have an amendment a bit later on that proposes that that is all this bill does. All this bill needs to do is amend the Employment Relations Act so that unions have to have in their rules a provision for holding secret ballots. Then the unions themselves, with their members, can decide in a democratic way what the process is. That is what all of the international conventions around freedom of association, and the whole tenor and support for freedom of association and collective bargaining under the Employment Relations Act, are about. It is about unions being independent of employers. It is about them being able to run their own business, just as employers’ organisations are able to. This bill will not require employer organisations or shareholders to amend their rules and go through the process that unions will be required to.
I think that when we talk about amending the principal Act everyone needs to understand what is being asked. We are imposing a whole lot of red tape not only on unions but also on employers. Employers will be affected by this because unions will have to go through a process of changing their rules, and in order for them to do that employers will have to comply. Employers will have to cooperate or the rules will not be able to be changed, and then over a period of time those unions will be in breach of the amended Act.
We oppose the bill for a whole lot of other reasons that we will get into a bit later.
MICHAEL WOODHOUSE (National) : I will take just a quick call on this particular clause, because it is at the heart of the Employment Relations (Secret Ballot for Strikes) Amendment Bill in terms of the principal—
Grant Robertson: I’m not sure Jo wants you to take a call.
MICHAEL WOODHOUSE: It is members’ day; that is why they call it such. I will just touch on what this particular clause is not. It was raised by Mr Burns in his call—
Chris Hipkins: He gets a bit of a promotion and it goes straight to his head.
MICHAEL WOODHOUSE: Oh, those members are nice to talk about it like that, are they not? It is just a list, guys. They should relax, unless they are in that member’s situation. In that case the member is a little less relaxed, would he not say?
This is what this clause is not about: it is not about compulsion, as Brendon Burns would have us believe. Indeed, he compared this with the voluntary student membership legislation. He said that somehow this legislation was about compulsion and that the voluntary student membership legislation was about choice, so we must be inconsistent. Well, I challenge that notion, because this bill is not about compulsion. Even the Labour members on the Transport and Industrial Relations Committee said this bill is about choice. They said it in their minority report, in which they said that “in New Zealand, union membership is voluntary and unions should be free to run their organisations according to the rules” that the members democratically put in place.
I will tell members what Labour members did not say, but what one of the unions came in and said. I cannot remember exactly which union it was, and I will not guess in case I get it wrong. The member in the chair, the Hon Tau Henare, may remember. When questioned about what would happen to a union member faced with a ballot that would not be secret, and about what choices that union member had in that situation, here is what that union said: “They’re free to resign. They can just go.”
The reason this is relevant is that this bill is exactly about protection. It is not about compulsion, and that is what the principal Act says. It says that the Employment Relations Act is “acknowledging and addressing”—these are Labour words, but in just this situation I agree with them—“the inherent inequality of power in employment relationships;”. I suggest that that inequality of power exists between unions and union members. It is exercised fairly in many cases, but I am sure that members on both sides of the Chamber have a number of examples of when union power was inappropriately used to muscle people into strike action against their judgment.
The member Tau Henare should be congratulated on bringing this bill to the House, because the inappropriate use of power happens altogether too often. [Interruption] There those members go—up. The halo on unions cannot be nudged. Well, I suggest that this bill is exactly what is needed in order to bring to the use of a secret ballot the very few, and not the very many, who use that power inappropriately. I strongly support the bill.
CHRIS HIPKINS (Labour—Rimutaka) : I will refer back just to what Michael Woodhouse was saying. I think one of the key things that he is missing about the Employment Relations Act 2000, which is the principal Act being amended by the Employment Relations (Secret Ballot for Strikes) Amendment Bill put forward by Tau Henare, is that the whole principle behind the Employment Relations Act 2000 is one of good faith.
I think National has always—has always—struggled to come to terms with what “good faith” actually means, and one of the things that the bill does is to undermine that notion. It says that unions cannot be trusted. That is one of the key messages that regularly comes out of the National Government when it comes to dealing with unions—that the unions cannot be trusted—and that, therefore, the good-faith provisions do not mean anything.
Well, I think that the good-faith provisions do mean something and when it comes to dealing with secret ballots, I think that the unions, by and large, act in a way that exhibits good faith. They act in a manner that is transparent, they act in a manner that is accountable, and I think that there is absolutely no need for the bill whatsoever. In fact, questions will be raised later in the debate about whether the bill goes wide enough, and why, if we are to insist on this provision of secret ballots, employers should not have to have a secret ballot of their shareholders, for example. That is something we will canvass later on in the debate.
Ultimately, in a good-faith environment, the bill is totally unnecessary. In an environment where there is goodwill and good faith between employers and employees the bill is unnecessary and it undermines that. It undermines the central principle behind the Employment Relations Act 2000. Were the bill necessary and to be effective, one of the things it would do, for example, is guarantee unions the right to access in the workplace, so that they could conduct the secret ballot. Under the bill, where secret ballots are required, there is no guarantee that unions will in fact have access to the workplace. Oh, goodness me! I think we have just stepped off the reservation now.
I would really like the member in the chair, Sandra Goudie, to take a call and espouse what in her mind are the central principles behind the Employment Relations Act 2000, the principal Act that the bill amends. I think that members all around the Chamber—in fact, people all over the country—would love to hear Sandra Goudie’s opinions on the Employment Relations Act 2000. We know that Sandra Goudie embodies the views of the National Party when it comes to workers’ rights. She is absolutely dedicated to the National Party cause. I would like her to take the next call and explain to us why she believes that the bill furthers the principles of the Employment Relations Act 2000. I will happily go and get her a copy of the Employment Relations Act 2000 if she—
Grant Robertson: That might be necessary.
CHRIS HIPKINS: I think it would require more than a copy of the Employment Relations Act 2000, actually, to get Sandra Goudie to produce something coherent. It would require an act of divine intervention to get a coherent call from Sandra Goudie, but we live in hope. We are optimists on this side of the House, and in fact I can see that Sandra Goudie has a copy of the bill. She is prepping up there—
Grant Robertson: That’s a start.
CHRIS HIPKINS: That is a start. There is always hope. I would very much like to hear what Sandra Goudie has to say on this. If it is as lively as the contribution we had from the member in charge of the bill, Tau Henare, earlier on, it will be a sight to see. We would very much like to hear what members opposite have to say about the bill.
What we know is that the bill is the first of many amendments to the principal Act that will be coming if National is re-elected. Of course, those members will not tell anybody what those amendments will be. It will be just one of those things. John Key has gone out there and said: “Oh well, we want to make more changes. If we are re-elected, we will make more changes.” He will not say what they are, but what National will do is turn round after the election and say: “We have a mandate now. We have been re-elected. We said before the election that we would change it.” Therefore—
Hon Member: No more kicking the tyres.
CHRIS HIPKINS: They have kicked the tyres. Therefore, they will make all of these extra changes to the Employment Relations Act 2000. This is the first of many. I am absolutely devastated that Sandra Goudie is leaving the chair and will not have the opportunity to contribute, although she could still take a call from her seat up on the backbenches and espouse to us why she believes that these changes to the principal Act, the Employment Relations Act 2000, are necessary.
SANDRA GOUDIE (National—Coromandel) : The first thing I would like to do is commend Tau Henare for bringing the Employment Relations (Secret Ballot for Strikes) Amendment Bill to the Committee. In speaking to clause 3, I say that the fantastic advantage of this amendment is that we further enhance protection for workers. Yes! That is absolutely critical. I think this is a brilliant member’s bill. Tau Henare should be congratulated. I know that workers will appreciate the fact that we are looking after their interests, and further enhancing their protection, by way of this bill.
KEITH LOCKE (Green) : A previous National speaker spoke about unions versus union members, which struck me as rather odd, because union members are the unions. They make up the unions. There are, of course, elected officials in unions. Perhaps the member was going to talk about union officials versus the members. But union officials are always elected by secret ballot. If any union official starts to kick the union members around, force them to go on strike, and beat down anyone who votes against a strike or anything like that, that union official would not last very long, particularly at the next secret ballot election.
When we look at the actual process in the workplace of deciding on a strike, we see the secret ballot is not primarily a protection against union members being pushed around by union officials but is a protection against union members being pushed around by their employers. Anyone who has been in a workplace knows that the fear of supporting a strike amongst workers is a fear about what their employer might think about their decision to vote to go on strike, not a fear of what union officials might think about whether they are voting for or against the proposal. Because there is usually a democratic atmosphere in the union, which the workers insist on, the officials accept people voting for and against a strike. But the employer gets rather upset, and makes that quite known to the workers, if they vote to go on strike. When the workers go back from the union meeting to the shop floor or whatever it might be, often the person who is in charge—the supervisor or somebody—will ask them about the meeting, how they voted, and all the rest of it. So the secret ballot is actually a protection of the workers against harassment from their supervisors and employers, not from union officials. That is a practicality of the workplace.
I support the amendments to the Employment Relations (Secret Ballot for Strikes) Amendment Bill that are being put forward by Darien Fenton, although I am a little questioning of one provision that would require a secret ballot in every case of a strike, because, as I indicated in my first speech, sometimes that is impractical. That should be a rare exception, and in any big workplace, normal workplace, Public Service workplace, or whatever, a secret ballot is certainly practical and should be pretty universal—although I am not sure whether that universality should be prescribed in law.
There is another question relating to rules, and this is where the issue comes back to a provision in the Employment Relations Act. That Act is supposed to govern the relations between workers and unions, and employers organised in some form as employers. It is not supposed to be an Act to determine exactly how all employers will conduct their business, or how all unions will conduct their business. That is not the nature of that Act; it concerns the relations between two self-determining parties. This bill tries to say one of those parties is no longer self-determining, and it will prescribe exactly how that party is to function. Once we do that, we disrupt the balance between the unions on one side, and the employers on the other. We will give the employers the right, through pressure on the State or judicial process, to then say the other party, the union, is not abiding by this or that provision in terms of the conduct of the secret ballot. Someone can say that they have proof that so-and-so at 36 Lewis Street, Wadestown, or wherever it is, did not get a ballot paper in the mail and was not able to participate in the election, so therefore that ballot on a strike is illegal, and da-de-da-de-da. That just causes huge frustration amongst the workers concerned, who may have perhaps voted by 95 percent for some sort of strike action, but are hampered by the State getting involved in their union’s internal affairs.
Hon Member: Who?
Hon TAU HENARE:—Hipkins—about the good-faith provisions in the parent Act, the Employment Relations Act. As far as I am concerned, good faith is nothing more than a Fabian notion of “we will tell you what to do.”—the lumpenproletariat. “We know best and we will tell you what to do, when and where, and we will tell you how to do it.” That is my little spiel on the good-faith provisions in the Act.
But here is something for Keith Locke to think about. What he should do is put away Nicky Hager’s book, stop reading it, and stop thinking that there is a conspiracy around every corner. There might be something around every corner, but it is not a conspiracy. It is not a conspiracy. Look, Keith Locke is a nice man. Keith Locke is one of New Zealand’s genuine nice men—I want to put that out there.
But—but—unions and workers are two different things. In my experience—and I know I have been referred to as the worst union organiser ever, and blah de blah. In fact, we have spent 2 hours listening to personal attacks on me and my career. But that is OK, because every member from that side of the Chamber has mentioned my name, and that is all right. The good people of Te Atatū are hearing that, as well.
Unions are organisations. Union officials are nothing more than people who grab subs from their union members and give them to the Labour Party—and give them to the Labour Party. Here is something I ask Keith Locke and anybody else who wants to butt in with their beautiful pearls of wisdom: how many workers are ever asked whether they mind their union taking $2 a week off them so that it can give $1 out of that $2 to the Labour Party?
Darien Fenton: It’s not true.
Hon TAU HENARE: Oh, it is not true! It is not true! That is what Darien Fenton says. That is what Carol Beaumont says—that it is not true. Well, how is it that the Service and Food Workers Union can give 200K to the Labour Party for the election? Where does that money come from? That is $200,000-odd.
Kris Faafoi: Where’s your money coming from?
Hon TAU HENARE: I know where my money comes from. In fact, in Te Atatū it comes from the hard-working people who belong to the National Party. They want to give me five bucks or $10.
Phil Twyford: He hasn’t got any volunteers.
Hon TAU HENARE: Oh, let us see. I saw this fella have a meeting the other night. His kaupapa was the busway out in Te Atatū. Who did he have at his meeting? Eleven people.
But I digress. One of them was one of my members! But I digress; I do not want to go there. The fact of the matter is that everybody needs insurance, whether or not we have an earthquake, and whether or not we have stand-over tactics.
- Progress to be reported presently.
- House resumed.
- The Chairperson reported the Education (Freedom of Association) Amendment Bill without amendment and progress on the Employment Relations (Secret Ballot for Strikes) Amendment Bill.
- Report adopted.