Employment relations and speedy, lopsided debates

Source: Radio New Zealand

Over the past two years, the government has broken legislative records – helped by more frequent use of Parliamentary urgency and additional sittings.

As a result, it would not be surprising if the prime minister’s to-do list had been whittled down to a toothpick. But Parliament shows no sign of slowing its legislative pace.

The government added an extra morning sitting again this week, pushing aside Thursday’s Select Committees to focus on passing bills in the House. Extra mornings have become the norm, rather than the exception.

The government hoped to progress ten different bills this week, with three moving through multiple stages. Two of those bills were strongly contested, while the third was unanimously supported.

We have already discussed the Public Service Amendment Bill, which, among other things, removes the obligation that the public service reflect the community it serves.

You can also hear audio relating to that bill (and others), at the green and gold podcast link above.

The unanimously supported bill widens the definition of who Anzac Day remembers, to include all Kiwis who have served, rather than just specific veterans and specific conflicts. No party is against this idea.

The third bill, the Employment Relations Amendment Bill, was more acrimonious. Labour’s Jan Tinetti began bluntly:

“Here we are again: another week and another government bill that’s putting a wrecking ball to the rights of workers in this country. …This bill is an absolute disgrace. It is an outright ideological attack on the rights of working New Zealanders, on the dignity of work, and on the very values that keep our community strong in this country. This Employment Relations Amendment Bill doesn’t amend the law, it amputates it.”

The bill finished its second reading debate on Tuesday, and then wrestled its way through a long Committee of the Whole House stage on Wednesday evening and into Thursday morning.

Lopsided debating

The debate was highly contentious, but not really contested. For example, here is National MP Rima Nakhle’s entire speech from the second reading.

“Speaker, thank you. While the Employment Relations Act has indeed provided important protections, over time, some of these settings have created unintended costs and risks for employers.

“What this bill and the changes proposed in this bill do is rebalance the system so that it works fairly for both employees and employers. I commend this bill to the House.”

MPs get 10 minutes to speak per “call”. Nakhle’s speech lasted barely 30 seconds. That is not unusual. The government wants speed, so coalition backbenchers say almost nothing on most bills.

This gives junior governing-side MPs scant debating experience, and it doesn’t help get the government’s arguments across in the House either.

Much of the time, Parliament’s debating is an oddly lopsided affair. The opposition does most of the debating, and the government wins all the votes.

On many bills, the only government speech that makes substantive arguments for passing a bill is the initial speech given by the minister whose bill it is.

The Employment Relations Amendment Bill

To find a speech that solidly outlines the government’s position on the Employment Relations Amendment Bill, we must reach back two weeks to when ACT’s Brooke van Velden, the Minister for Workplace Relations and Safety, opened the second reading debate.

“This bill is a key part of the government’s commitment to providing greater certainty for businesses and workers; supporting economic growth; and ensuring our employment relations framework is fit for a modern, dynamic economy.”

Van Velden described the bill’s foci as: “providing greater certainty for contracting parties; strengthening the consideration of accountability for the employee’s behaviour in the personal grievance process; providing an income threshold for ineligibility for unjustified dismissal personal grievances [now $200,000 p/a]; and removing the 30-day rule to improve freedom of choice and cut red tape at the beginning of employment. Together, these changes will improve labour market flexibility across the spectrum.”

The minister also outlined some adjustments to the bill.

“The bill introduces a new gateway test that provides a clearer and more efficient legal test for clear-cut, genuine contracting arrangements, which gives weight to the intention of contracting parties.

“The gateway test now explicitly covers situations where a business facilitates work for a third party… For the intention criterion, the test now clarifies that a business can specify in the written agreement that the worker is either an ‘independent contractor’ or ‘not an employee’. This means businesses that don’t classify workers as independent contractors can still use the gateway test.”

“For the restriction criterion, the test makes clear that contracting a worker for full-time work will not, in and of itself, constitute a restriction on working for others.

“This addresses a risk that the Employment Relations Authority or the Employment Court might interpret full-time work as a restriction on being able to do other work.”

Among the opposition speakers, putting a varying point of view, was Labour’s Camilla Bellich.

“[The bill], effectively, rewinds and takes away the victory that some of our most vulnerable workers in New Zealand, Uber workers, gig workers, won in the Supreme Court only in November last year… What is this government doing?

“It is reversing their win through this terrible piece of legislation that will take those hard-won gains that those Uber workers made in the Supreme Court and, effectively, turn those around through the introduction of this gateway test.

“The test for who is an employee is something that is common throughout Commonwealth jurisdictions. It looks to the real nature of the work, which should be the test that we use.

“The test in this bill reverses that and makes it much easier for employers to say, ‘You are not an employee. You don’t get holiday pay. You don’t get parental leave. You don’t get sick leave. You don’t get the minimum wage. You don’t get anything, because you’re not an employee.’ That is what this bill does.”

Belich said the 30-day rule would be abolished, and that had implications for new workers.

“It essentially means that when you start in a job, instead of being covered by the collective employment agreement, …you’ll most likely be covered by an individual employment agreement unless you decide independently to join a trade union.

“The reason that that is really important is because what a lot of individual employment contracts have in them is a trial period-essentially a 90-day period where, similar to what will be introduced here, you have absolutely no rights at all, and you can be sacked for any reason at all.”

There had been plans to get the Employment Relations Amendment bill finalised in this week’s final hour of Parliament, on Thursday afternoon, but the government opted instead to begin the third reading of the Anzac Day Amendment Bill.

The Anzac Day bill seemed especially appropriate within a debating chamber that is, quite literally, a giant war memorial, with plaques for all of the many conflicts and actions New Zealand has been involved in.

And despite powerful speeches of painful history and personal grief, it was still a more convivial discussion than a third reading of the Employment Relations Amendment Bill.

*RNZ’s The House, with insights into Parliament, legislation and issues, is made with funding from Parliament’s Office of the Clerk. Enjoy our articles or podcast at RNZ.

– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand