Employment rights may often be human rights. They are always human rights in a literal sense. There is a human involved, often with a family or dependents that may be reliant on them. Or the human is reliant on that worker for their support, providing them with a home, with food, with the best education and the best health care that they can.

This governments latest move to strip away employments rights from some of New Zealand’s most vulnerable humans may be the cruellest cut to date. The Minister for Disability Issues, Louise Upston, announced last week a bill that would reverse the recent Supreme Court decision to recognise some family carers as employees.

Christine Fleming and Peter Humphries fought their way through New Zealand’s employment jurisdictions to the Supreme Court, which late last year confirmed that they were employees of the Crown. Ms Fleming and Mr Humphrys have courageously taken on the task of the full-time care for their respective adult disabled children. Ms Fleming’s son Justin was born in 1981. He is physically disabled as a result of a chromosomal condition. The principal consequence of his condition is physical frailty. This has affected his ability to take care of himself. Justin also has a moderate intellectual disability. Mr Humphrys’ daughter Sian was born in 1988. She was diagnosed with a congenital condition as a young child. Sian does not have verbal language and, while not physically frail, needs constant care. Amongst other matters, she needs someone to accompany her outside and has no road safety awareness.

It had been government policy that funding for disability support services could not be used to pay for care provided to disabled people by family members with whom they lived. In 2012 the Court of Appeal in Ministry of Health v Atkinson found that this policy was discriminatory.

Ms Fleming and Mr Humphries each brought proceedings in the Employment Court claiming that, in their full-time care for their children, they were “homeworkers” of the Ministry. Section 6 of the Employment Relations Act makes it clear that the definition of “employee” includes a “homeworker”. A “homeworker” is in turn defined as “a person who is engaged or employed by any other person to do work for that other person” in a home.

The Employment Court found that Ms Fleming and Mr Humphrys were both homeworkers. That Court also concluded that the correct calculation of wages for Ms Fleming should reflect her hours of work, applying the test for what constitutes work as set out by the Court of Appeal in Idea Services Ltd v Dickson. That case concluded that Mr Dickson was “working” for the purposes of the Minimum Wage Act when employed on a “sleepover” in a community home.

The Supreme Court unanimously agreed and declared that Ms Fleming and Mr Humphreys were employees late last year. The Supreme Court noted that the definition of a “homeworker” was introduced to provide protection for vulnerable workers working from home and was consistent with the international Convention on the Rights of Persons with Disabilities.

In introducing the Disabilities Support Services Bill, Minister Upston makes it clear that Disability Support Services (DSS) that the Crown is not to be the employer of family carers. The explanatory note for the Bill says that the proposed legislation would reduce the Crown's exposure to fiscal and litigation risks by:

• extinguishing existing claims already filed (other than those of Ms Fleming and Mr Humphries)
• barring claims regarding the employment status of paid family carers, disabled people, and people acting on behalf of disabled people

• baring claims of discrimination related to paid family carers

• Noting that while section 27 of the New Zealand Bill of Rights Act affirms a person’s right to justice, the litigation bar is necessary to restore policy-setting responsibility to the Crown, and ensure that decisions about publicly funded care and support by family members are made within the framework set by Parliament.

Without revisiting this government’s list of stripping away employment rights, last year this government in the process of saving “billions of dollars” cancelled 33 claims from female-dominated workforces which had been seeking to prove they were underpaid in comparison to similar male-dominated industries under what had been an acceptance in the recent past from both major parties that pay equity issues are real and worth addressing. The Government also significantly raised the threshold for future claims.

What Ms Fleming and Mr Humphries have effectively been fighting for is to ensure that they are paid at the rate of the minimum wage for the work they provide their children personally, rather than the cost to the Crown of putting those children into the care of the Crown (which no doubt would be at a much higher cost - providing carers, providing accommodation, providing minimum access to education and health care etc) and in the process limiting those disabled children with access to the loving care of their parents and whanau.

While Minister Upston has said that she has “commissioned further work in this space and will be consulting on a package for carers", the bill is intended to strip away employment rights, human rights and access to justice in the name of cost cutting. As Nelson Mandela said "A nation should not be judged by how it treats its highest citizens, but its lowest ones."Read more... 

The decision of the High Court in Tony Gibson’s appeal against his conviction and sentence in his personal capacity as an executive of Ports of Auckland Ltd (POAL) has important lessons for directors and senior managers who are in significant positions of influence in business.

In the past decade, New Zealand has had 18 deaths and 397 reported injuries in its ports. Stevedoring has the second highest rate of fatalities of any industry in New Zealand. Pala'amo Kalati tragically became one of those fatalities when a container fell and crushed him while he was working at POAL in 2020.

POAL was convicted and fined over $500,000 over Mr Kalati’s death. Tony Gibson was the Chief Executive of POAL at the time. He was also charged over Mr Kalati's death under the Health and Safety at Work Act (HSWA). After a seven week trial he was found guilty and was fined $130,000 and ordered to pay $60,000 in costs. This was the first conviction of a director or executive of a large New Zealand company under section 44 of the HSWA which imposes personal accountability on directors and executives for workplace safety.

Mr Gibson appealed his conviction and sentence.

By many measures POAL is large and complex organisation. It provides a range of services; marine (pilotage and tugs); cruise ships (berthage, exchange and security); multi-cargo (transmission shipment to the Pacific Islands of cargo, bulk commodities and vehicles); container terminal services (handling 700,000-900,000 containers each year); and engineering and trucking logistics support. In 2020 it had five primary business units and employed approximately 650 people and contracted various third parties.

Befitting its size and complexity, POAL had a developed management structure. The business was supported by a specialist health and safety team (of 10 full-time employees led by a senior manager who reported directly to POAL’s Deputy CEO/Chief Financial Officer). It had committees, document management and electronic data systems, external auditors and advisers and collaboration with other ports. While these had been developed over years it was also subject to continuous improvement.

The trial Judge made it clear in his decision that the fact that POAL had breached its primary duty of care under the HSWA (to ensure, so far as reasonably practicable, the health of safety of its workers) did not lead to a conclusion that Mr Gibson failed in his duty. They are separate duties. A business can breach its duties despite proper efforts by its officers/managers to do all that they can reasonably have been expected to do in the circumstances, having regard to what the officer/manager knew, what they ought to have known, and their ability to make or influence decisions in relation to the relevant matter.

Dealing with “systems leadership”, the trial Judge noted that in any large organisation effective systems are key to health and safety management. He said, as CEO, Mr Gibson was required to engage in effective systems leadership. He had a responsibility to ensure the resources and processes in place ensured compliance with POAL’s duties under the HSWA. That required him to ensure that the information he received reflected work as done or “what people are doing on the ground”.

Both the District Court and High Court judgments emphasised the remarkable leadership of Mr Gibson during his tenure. They are the stuff of a really good CV; by his actions and leadership a number of health and safety initiatives were introduced at POAL that “were positive and enhanced workplace health and safety”; he shouldered a “significant additional burden”, and went to “significant efforts” to look after his staff during the COVID-19 pandemic; the Board considered Mr Gibson’s response to those unprecedented times had been exceptional, showing leadership qualities of mental tenacity to keep calm, stay on track and ensure that everyone was informed and engaged, while demonstrating an outstanding level of commitment and dedication to staff.

The High Court accepted the evidence that frontline staff knew Mr Gibson. They volunteered that he was a “really good, good person”, who led positive change and made POAL less hierarchical. He was a respected boss. He also had the support of the Board and was “considered to be a good leader who was dedicated to the port and its staff”.

But the High Court decision emphasised points made in the District Court judgment. Although Mr Gibson did not have actual knowledge of stevedores engaging in unsafe practices or cutting corners on the night shift, he was on notice at least from late 2018 following an earlier fatality, that POAL had demonstrated ongoing difficulties in adequately monitoring “work as done”. As CEO, Mr Gibson should have been aware that appropriate systems and processes needed to be put in place to address POAL’s previous failures in that respect. This was confirmed by a report to the Board in 2019 which included a table setting out numbers of incidents, near misses and non-compliance, but also stated “it is likely this table is not reflective of actual events occurring within POAL operational areas due to lack of overall reporting indicating a lack of monitoring of “work as done”.

The High Court decided to uphold Mr Gibson’s conviction and sentence.

Mr Gibson resigned from POAL in June 2021. Tragically, a further stevedore at POAL, aged 26, died in April 2022 after being crushed by a container.

Health and safety is not just about policies and systems, it is about ensuring that work is monitored “as done”, not just as set out in policies and systems.

It is all to easy to “pooh pooh” health and safety, but in New Zealand both workers and employers must do better.  Read more....

Mr Luxon, our Prime Minister, is keen on numbers. The National Party came into power by capturing approximately 38% of the votes. According to the Electoral Commission, in 2023 there were 3.6 million registered voters (out of a population of over 5 million). National secured just under 1.1 million votes to get into power.

Mr Luxon is also great on KPIs (key performance indicators – great for reviewing performance, or more particularly, poor performance). A quick overview; Education (or should that be education with a small “e” – it’s hard to know with all the changes to the curriculum); Health (ohhh dear, but at least National knows that its voter base is more likely to be able to afford private health insurance); Law and Order (ICE worked out well in the US didn’t it, how about "move-on" orders to assist our poorest and most in need people by preventing them from engaging in “disruptive behaviour” such as begging and sleeping rough in town centres); Race Relations (Trump was keen on a wall, maybe National thought it could sit on top of a wall before deciding which side to jump down on; Beneficiaries (National’s plan was to slash benefits to make them get back into work – unemployment was roughly 4% in December 2023, it now sits at 5.4% in December 2025 and is tipped to rise even higher).

Maybe Mr Luxon’s legacy will be the changes to employment law that National has supported. Another quick overview.

The availability of trial periods of up to 90 days has been extended to all employers, and not confined to employers with less than 20 employees. Great in theory for employers who want to try out employees, but unfortunately the risks of dismissing an employee during a trial period remain.

Following the Uber decisions on whether Uber drivers are employees or contractors, the law was amended to introduce a “gateway test” which was said to provide more certainty in contracting arrangements. Of course there was little uncertainty for our courts - our Employment Court, Court of Appeal and Supreme Court all found that the Uber drivers were employees. Remarkably, the changes to the law look very similar to the changes that Uber had suggested to the Minister as a solution to the adverse decisions against it.

To be fair, not all changes are targeted at the working poor. Employees earning more than $200,000 or more per year have been stripped of the right to bring a personal grievance claim if they are unjustifiably dismissed.

For those employees that are able to bring a personal grievance claim if they are unjustifiably dismissed, they have been stripped of two important remedies if they contributed to their dismissal. The employee cannot be reinstated, and the employee will not be able to receive any compensation for any hurt or humiliation they have suffered. They can still claim lost wages, but that is usually capped at three months lost wages.

Perhaps the most damning of the employment law changes were those to pay equity laws. Effectively overnight the government made changes to the legislation that mean that 33 existing pay equity claims were cancelled, and the bar for future claims was significantly raised. Female-dominated workforces which are generally considered to be underpaid in comparison to those dominated by men will continue to be undervalued. Those claims were in some of our most valued occupations - Plunket nurses, community midwives, hospice nurses and health care assistants, primary care nurses, nurses in residential care. 

The Finance Minister said the changes meant savings of about $12.8 billion over four years. Mr Luxon has admitted that the changes to pay equity laws will save the government “billions of dollars” but he now says that this was not the motivation for changing the legislation. It is hard to see what other motivation the government may have had.

As of 1 April 2026, the government increased the adult minimum wage by 45 cents to $23.95 per hour. More realistically, the independently set living wage rises by 95 cents to $29.90 per hour. Even more realistically, a recent report by ASB economists says that households face a $55 a week rise in living costs this year, partly because of the Middle East conflict.

National came to power on a platform of Blame, Blame, Blame and tiny tax cuts that are costing $14.6 billion over four years. “Our plan is carefully targeted to ensure that those who will benefit the most are working New Zealanders. It’s about time they got some relief from Labour’s cost-of-living crisis and National will deliver that to them”, Mr Luxon said. The irony is that we are still waiting Mr Luxon.

If Mr Luxon was an ordinary working New Zealand employee no doubt he would be on a PIP (Performance Improvement Plan) by now. Actually no, if Mr Luxon was an employee he would earn more than $200,000 so he couldn’t challenge his dismissal if he was fired. But politics are even more brutal than our new employment laws. Mr Luxon’s final performance review will be in November this year. Current polling indicates that it is ranging between “unsatisfactory” and “needs improvement”. Read more...

For years, tikanga Māori has increasingly been recognised by our courts and legislation. The most recent significant case was the Supreme Court decision on whether Peter Ellis, under tikanga, would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa, rather than an individual's life.

It now seems that other cultural values may have to be considered in employment relationships. This month the Employment Court found that Pasifika values had been breached when it found that two employees, Mr John Faitala and Mrs Vohanoa Vea, were unjustifiably dismissed for redundancy reasons in June 2023.

The Pacific Island Business Development Trust is a long-standing not-for-profit organisation. Its objectives are to support Pasifika people to thrive in business and employment. It considers itself a trusted partner of Pasifika communities.

The position descriptions for Mr Faitala and Ms Vea both referred to Pasifika culture and values in its workplace. It wanted successful applicants to be fluent in one Pacific language and/or have cultural capability and understanding. For values, it focussed on Respect, Community and Reciprocity as cornerstones.

In evidence the Trust accepted that these values were pillars of the Pasifika community and that they are intrinsically embedded in Pasifika individuals. Mr Faitala and Ms Vea also confirmed that Pasifika values and principles are deeply ingrained into who they are, and that it shapes the way they conduct themselves and interact with others. Mrs Vea spoke of the importance of treating others with respect and dignity, and that respect is reciprocated. Mr Faitala also testified to the shared and universal Pasifika values of treating others how you would want to be treated and how this shaped how he conducted himself in all his interactions with others.

In early 2023 Ms Los’e was appointed as the Trust’s new chief executive to lead changes within the organisation. To meet identified challenges the Trust proposed that five roles would be disestablished, including Mr Faitala and Mrs Vea’s roles. It also proposed that nine new roles be established – with the potential for affected staff to be redeployed into the new roles should the proposal go ahead.

When the Trust decided to go ahead with the restructure Mr Faitala and Mrs Vea claimed that there were numerous instances of unjustified disadvantage in the consultation process by the Trust, including the failure to observe Pasifika values. The Trust acknowledged that it fell short in regard to observing cultural values but aspects of the process exhibited cultural understanding and empathy. The Court agreed with Mr Faitala and Mrs Vea that the Trust failed to comply with its obligation to adhere to Pasifika values when conducting its restructuring process and that the values had been expressly incorporated into the parties’ employment agreement.

Mr Faitala spoke to the importance of his culture to him. He was raised in Niue and his Niuean culture is central to his identity. He is part of the Pasifika community in Aotearoa, he lives his life consistent with Niuean values and refers to carrying with him core values of “integrity, honesty, kindness, fairness, courage and strong work ethics”. Mrs Vea gave evidence that being born and raised in Tonga that Tongan culture and Pasifika values are woven into her life. She gave evidence of how proud she was of her senior position at the Trust and the respect she received in the community because of this role.

Tikanga has already been increasingly recognised in the employment jurisdiction. For example, in Pact Group v Robinson the employee said that as a Māori her mana was being impacted by the disciplinary process the employer was undertaking. The Judge agreed and referred to Utu “the action undertaken in reciprocity”, and its link to mana. To show and reciprocate generosity enhances mana and strengthens relationships, whereas the failure to give or receive utu diminishes the mana of both parties to the relationship. The Court said the company failed to reciprocate the care, empathy and consideration she was expected to bring to her own role as a community support worker for the company.

In GF v Comptroller of the New Zealand Customs Service the Employment Court found that because Customs had incorporated tikanga and tikanga values into its policies and employment relationships, they were relevant. The Court said “the tikanga/tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship-centric, based on mutual obligations of good faith, and focused (where possible) on maintaining and restoring productive employment relationships.”

Substantial awards were made by the Court to Mr Faitala and Ms Vea. Mr Faitala was awarded six months lost remuneration and $30,000 compensation. Mrs Vea was awarded one years lost remuneration and $45,000 compensation.

Diversity is often promoted and supported in the modern workplace. It is often said to focus on recognising, respecting, and valuing differences in background, gender, age, disability, and ethnicity to foster innovation and belonging. By positively promoting it in the businesses policies and recruitment processes employers should be aware that celebrating that difference may be used as a sword by the employee down the track. Conversely, not having a diversity policy may limit the pool of potential best talent for the employer to choose from. Read more....