Formal Opposition to

Summary of Opposition

I submit this formal opposition to the Employment Relations (Termination of Employment by Agreement) Amendment Bill on the grounds that it entrenches employer privilege, undermines employee protections, and obscures patterns of coercive or exploitative conduct in the workplace.

This private member’s bill, introduced by ACT Party MP Laura McClure, is part of a broader deregulatory push that prioritises employer discretion over employee rights — often framed as administrative convenience while weakening foundational protections.

While the Bill is presented as a facilitative mechanism for mutual agreement, it ultimately weakens New Zealand’s personal grievance framework, restricts access to justice, and incentivises non-transparent terminations under the guise of discretion. It is structurally and ethically one-sided — normalising power-imbalanced negotiations and removing critical safeguards for vulnerable employees.

1. Enables Covert Terminations Without Accountability

Clauses: Section 101A(1)–(2), 101B(1)–(4)

The Bill allows employers to propose an agreement to terminate employment and include a financial settlement, while asserting that such proposals do not in themselves constitute grounds for a grievance. Simultaneously, it renders evidence of such negotiations inadmissible in proceedings before the Employment Relations Authority.

Issue: This enables a form of “quiet firing” — employer-initiated pressure exits disguised as mutual agreement — while pre-emptively blocking scrutiny of whether those exits were fair, consensual, or coercively engineered. The suppression of negotiation records denies employees a transparent recourse pathway, even in cases of constructive dismissal or undue pressure. Such provisions are ripe for misuse in power-imbalanced settings and run contrary to the principles of natural justice.

2. Undermines the Integrity of the Personal Grievance System

Clauses: Section 101A(2), Section 101B(1)

By declaring that an offer to end employment “does not in itself constitute grounds for a personal grievance,” the Bill inserts a blanket exclusion into employment law — regardless of how the offer was presented, the conditions under which it was received, or the implied threat of consequences for refusal.

Issue: This severely curtails the right to contest pressure-based terminations, especially where such offers are accompanied by thinly veiled intimidation, punitive reassignments, or engineered performance management processes. It invites strategic misuse by employers, particularly in small or unregulated workplaces, and erodes the oversight function of the Employment Relations Authority.

3. Legalises Workplace Secrecy and Erodes Collective Knowledge

Clause: Section 101A(4)

The Bill allows termination agreements to include clauses prohibiting disclosure of terms to other employees.

Issue: This contributes to workplace opacity and the erosion of collective rights, making it harder to detect and challenge discrimination, targeted dismissals, or systemic abuse. Such confidentiality clauses may also deter whistleblowing, union organising, or peer support — stifling vital mechanisms of accountability. It is antithetical to the spirit of Section 103 of the Employment Relations Act 2000, which recognises unjustified dismissal as a serious employment relationship problem, often detectable only through shared experience and open communication.

4. Disproportionately Harms Vulnerable Employees

Relevant Sections: Entire Bill

While the Bill requires employers to advise employees to seek independent advice before signing (s101A(3)(c)), it does not mandate that advice be accessed, nor does it ensure the employee is in a position — financially, culturally, or emotionally — to do so.

Issue: This creates the illusion of procedural fairness by requiring employers to recommend legal advice — while offering no mechanism to ensure access, comprehension, or genuine capacity to act. The safeguard is cosmetic, not functional — especially for low-income, migrant, casual, or non-unionised workers. In practice, such workers may feel unable to challenge these offers, particularly under time pressure or within culturally hierarchical settings. The Bill structurally enables the quiet displacement of the very people most in need of legal protection.

5. Disrupts Legal Consistency and Evidentiary Rights

Clause: Section 101B(5)

This clause declares that the inadmissibility of negotiation evidence applies despite Sections 106(2) and 189(2) of the Employment Relations Act.

Issue: This undermines statutory coherence. It raises constitutional concerns about whether Parliament is enabling private contractual arrangements to override statutory rights — effectively privatising justice and silencing review of power misuse. While dishonesty is carved out as a narrow exception, most real-world pressure, manipulation, or procedural unfairness does not meet that threshold — and yet merits legal scrutiny. These evidentiary restrictions block patterns of coercive practice from ever reaching adjudication, making them invisible to both tribunals and public policy-makers.

Conclusion

This Bill reflects a wider deregulatory ideology advanced by the ACT Party — one that promotes employer flexibility while actively reducing employee fairness. Framed as a practical fix, it in fact degrades transparency, limits recourse, and enables coercive exits to be repackaged as “mutual agreements.” It weakens the legal safety net for employees, impairs institutional oversight, and opens the door to procedural misuse under the protection of confidentiality and evidentiary silence.

Passing this Bill would set a dangerous precedent — signalling that legal protections can be hollowed out by agreement, even where coercion or imbalance exists. It undermines trust in the law’s capacity to uphold fairness at work.

Accordingly, I urge Parliament to reject this Bill in its entirety, or at minimum, require substantial amendment to:

• Prohibit the use of non-disclosure clauses in termination agreements where a power imbalance exists;
• Ensure admissibility of negotiation evidence where procedural fairness or implied duress is in question;
• Mandate truly independent advice, funded where necessary for low-income employees;
• Restore the right to raise a grievance if mutual termination offers are used as a form of strategic dismissal.

New Zealand’s employment relations system should be built on transparency, accountability, and protection of the vulnerable. This Bill weakens all three. It serves secrecy over justice, expedience over process, and privilege over fairness.

Respectfully submitted,

Ukes Baha

Public Health Advocate | Counsellor | Policy Analyst

ukesbaha.com