ANZ Bank Australia recently announced plans to cut 3500 staff and 1000 contractors in the next 12 months as part of major changes intended to ‘simplify the bank’. In formally announcing the plan CEO, Nuno Matos, acknowledged this would be “difficult news for some of our staff”.

Unfortunately, ANZ also had to apologise to some staff who found out they had been fired through an automated email asking them to hand back their laptops. ANZ said the emails were sent in error to some staff ahead of schedule.  ANZ's retail banking executive Bruce Rush said it was "not our intention to share such sensitive news with you in this way". It said it has since stopped sending the emails and that staff have been spoken to personally.

The Financial Sector Union president Wendy Streets said "speed and cost-cutting cannot come at the expense of dignity and respect for workers," describing the "botched" episode as "disgusting".

However, the timing of the Bank’s announcement comes shortly after a significant ruling on redundancy and the option of redeployment from Australia’s highest court – modestly named the High Court.

The starting point under Australian employment law is that a “genuine redundancy” is a complete defence to an unfair dismissal claim. But it requires the employer to show that the affected employee’s role is no longer required to be performed by anyone, that it has consulted with the employee in accordance with any obligations under an applicable industrial instrument, and it would not have been reasonable in all the circumstances for the employee to be redeployed within the employer’s business. Prior to the new ruling, it was considered that employers were only required to consider suitable vacant roles as redeployment options for employees who they intended to make redundant.

In Helensburgh Coal Pty Ltd v Bartley & Ors the company contended that the Fair Work Commission is not permitted to consider possible changes to the ways in which an employer conducts its enterprise, including the option of replacing contractors with employees. It claimed that the Fair Work Commission cannot substitute its own view in place of the employer’s view on the matter, which it said is consistent with other aspects of Australia’s unfair dismissal regime where the Commission does not “stand in the shoes” of the employer to determine what it would have done if it were in the employer’s position.

The High Court of Australia disagreed and unanimously held, that the Commission is permitted to engage in a broad inquiry when determining whether an employer could have made changes to the way in which the employer used its workforce when determining whether a redundancy is genuine for the purposes of Fair Work Act. Before making a decision to dismiss employees on grounds of redundancy, employers must now consider all possible redeployment options, including whether redeployment in roles currently occupied by other workers, including contractors or workers engaged through labour hire and other outsourcing arrangements, would have been reasonable.

Traditionally, New Zealand courts have taken the view that whether a position is truly redundant is a matter of business judgment for the employer. The courts have been careful not to substitute their own opinions for that of the employer. That position has changed somewhat since the statutory test for justification was introduced by the Employment Relations Act.

Since 2010 it is accepted that, where possible, an employer should offer alternative employment to an employee whose position might be redundant. For example, in Wang v Hamilton Multicultural Services Trust the Employment Court held that the employer had a duty to offer appointment to an alternative position if the employee was capable of performing the role, even though that employee might not have been the best person for the job.

Redeployment may also need to look at other options in appropriate circumstance. For example with international entities, consideration may need to be given to work available outside of New Zealand. In Stellar Elements NZ v Annesbury, the Employment Court granted interim reinstatement when it considered that the interconnectedness of staff was demonstrated by the assortment of New Zealand and Australian staff with relevant reporting lines and the employee’s work was not confined to New Zealand.

It will be interesting to see if our employment institutions take notice of the High Court of Australia’s ruling including whether employers should reasonably consider redeployment into roles currently filled by other workers such as contractors or workers engaged through labour hire and other outsourcing arrangements.

And while ANZ Bank Australia plans to cut staff includes contractors, it may have a harder time justifying resulting dismissals as these multi-national banks operate in various jurisdictions with region wide reporting lines with complex resourcing arrangements including contracting, secondments and use of labour hire companies. Read more....

To tell a lie means to say something that is not true with the intention to deceive or mislead someone. A lie involves communicating a statement that the narrator believes to be false, with the goal of causing the listener to accept it as true. 

In employment law, employees are expected to comply with their implied common law duty of fidelity, which has been interpreted in terms of the employee’s duty to avoid any conduct a person of ordinary honesty would look upon as being dishonest. Parties must act and have trust and confidence in each other.

Parliament has rules about telling lies. It has decades of collected interpretation of those rules. Generally, Parliament’s rules say that mistakes are understandable but need to be corrected as soon as possible. Differences of opinion or interpretation are matters for debate. Intentional lies are one of Parliament's biggest offences, described as "misleading the House". Without correcting the lie, it is considered to be a contempt (like a contempt of court) and may be referred to the powerful Privileges Committee for adjudication (which of course is stacked on the lines of the party or parties in power).

Lies are taken seriously because debate is pointless if MPs make things up. This is particularly important for government ministers, who are responsible to Parliament. Accusing another Member of Parliament of lying is also a serious matter.

Speaker's Ruling 48/3 says that "The offence of calling another member a liar, or implying that another member of the House is a liar, is an offence against the House not an offence against the other person; it is an offence against the dignity of the House and the assumption that its members behave truthfully and honourably. For the Chair to allow that accusation to go unchecked would not be an injustice to the member accused but an injustice to the whole House."

Last month in Parliament the former Deputy Prime Minister, Winston Peters, complained about the Labour Leader, Chris Hipkins', description of tobacco tax changes. Mr Peters claimed "Point of order, Mr Speaker. We have sat here for month after month after month while those members have repeated that lie in this House. I am seeking to correct it”. Mr Hipkins responded "Point of order, Mr Speaker. Last week you ejected a member and named them for saying that they were struggling to find members with a backbone. How is accusing other members of repeatedly lying in the House any different?"

Instead of stamping on that serious allegation immediately the Speaker advised Mr Hipkins that his remedy was by way of the Standing Orders to have that corrected (making a formal written complaint). That ruling by the Speaker quickly lead to a degeneration of behaviour in the House. A few minutes later, Mr Hipkins tested the Speaker's new interpretation by interjecting "nah, it's just a lie" when Mr Peters was talking about the scrapped ferry project.

Lying can be grounds for an employer to dismiss an employee. It is usually classified as serious misconduct that undermines the trust and confidence essential to an employment relationship. Of course, the employer must follow a fair process, including investigating the allegation and providing the employee with an opportunity to explain their actions. The severity of the lie, the employee's disciplinary history, and the level of trust in the role all play a role in determining if the dismissal is fair. 

In an older case, Restaurant Brands v Bond, Mr Bond was employed in a KFC store as a general manager. After discovering monetary discrepancies, a covert investigation caught Mr Bond taking $80 from the till. During the disciplinary investigation Mr Bond gave an implausible explanation which was not believed. He was dismissed. Restaurant Brands claimed special damages against Mr Bond. The Employment Relations Authority held that Mr Bonds action of taking $80 was a breach of his duty of fidelity in his employment and as a senior employee Restaurant Brands placed a high degree of trust and confidence in him as a senior employee and awarded Restaurant Brands over $8,900 in damages (far more than the $80 he was caught stealing).

But like the recent exchange in Parliament, even in employment law, it is a question of degree. For example, it may be that a one-off incident of an employee claiming an extra 15 minutes on their timesheet, or an employee claiming a sick day while being caught playing golf, may not justify dismissal. At the end of the day, it will be for the employer to justify why the employer dismissed the employee for lying about what the employee was doing. Likewise, the employee will need to persuade the employer (or the Employment Relations Authority) why the lie was not sufficiently serious to warrant dismissal.

It would seem that the Speaker has recently lowered the bar on the high expectations the House has of it’s Members. Is lying, or accusing someone of lying, not as serious as it was once considered? Read more...

Protests about the recent sudden and controversial changes to pay equity laws have started heating up. An unofficial People's Select Committee has been set up of former female MPs from across party lines to collate evidence that was not obtained by the government during the passing of its laws. And a pay equity advocacy group is making an urgent appeal to the United Nations to investigate what it calls a "historic and deliberate regression" of women's economic and political rights in New Zealand.

New Zealand was a world leader in this. The Equal Pay Act was enacted way back in 1972 to ensure that New Zealand employees are compensated fairly based on the value of their work, regardless of their gender. The intention means that jobs requiring similar skills, responsibility, and effort should receive equal pay, even if the jobs are different. The Act prohibits sex-based discrimination in pay and provided a process for addressing pay inequities in female-dominated occupations. 

Also back in 2017 the then National-led government passed a forerunner to the current legislation for the health sector only, the Care and Support Workers (Pay Equity) Settlement Act. More recently in 2018 when it was in opposition, National supported the Labour government’s new Equal Pay Act, as well as the Equal Pay Amendment Act in 2020. Those changes were designed to extend a pay equity process to all occupations and create a clearer pathway for making pay equity claims. With both major parties seemingly aligned, it is understood that 33 pay equity claims were being progressed.

Effectively overnight the government made changes to the legislation that mean that these existing claims have now been blocked, and those 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. In making the changes the  government also raised the bar for future claims to be successful.

So why does it matter? Clearly there has been an acceptance in the recent past from both major parties that pay equity issues are real and worth addressing. It is based on the worthwhile premise that there should be equal pay for equal work. To eliminate discrimination based on gender in the workplace, most New Zealanders would agree that a person working in the same role, with similar experience, and with similar performance should in principle be paid the same. Women in the role should not be discriminated against and paid a lower rate.  

The more insidious discrimination is harder to address. It has resulted in occupations that have been undervalued and underpaid based on whether they have been male or female dominated. Achieving pay equity is complex and needs to ensure that jobs that are different but of equal value are paid similarly, as a way to achieving gender equality. The recent legislation changes will make it harder to establish pay inequity.

The cost to addressing some of these inequities is significant. The previous budget allocated some $17 billion over four years, suggesting that in the government funded sector the costs of settling pay equity claims could be considerable. The most recent budget slashes that with the changes; the Finance Minister said the savings amounted to about $12.8b in total over the next four years.

While the Prime Minister has admitted that the changes to pay equity laws will save the government “billions of dollars”, he now says that this was not the motivation for changing the legislation. The Deputy Prime Minister was more forthright "I actually think that Brooke van Velden has saved the taxpayer billions”. Mr Seymour also said

“women won't be worse off because of these changes".

While the gender pay gap in New Zealand has reduced steadily from 16.3% in 1998, progress has slowed; as at 30 June 2024 it is currently at 8.2%. The gender pay gap is significantly higher for women that are Māori, Pacific, ethnic, or disabled. It is also reflected in higher rates of unemployment, underutilisation, and underemployment, as well as persistent pay gaps when compared to men.

But the everyday reality is that women who are paid less than they should be will continue to struggle to put food on the table, pay back student loans, get onto the property ladder, pay their mortgage or rent, contribute to their KiwiSaver and afford their retirement.

The recent changes make the more insidious gender discrimination issues harder to address. While taking steps to try and remedy a social injustice may have a cost, so do some significant costs the government has taken on in more historically male dominated sectors; such as defence spending and big tax rights offs for landlords and farmers.  Read more....

Last week an estimated 4300 planned procedures and specialist appointments were postponed due to the nurses strike. Health care professionals do not take strike action lightly. It goes against all the reasons that they work long and hard for those New Zealanders who need care. But a large strike, with significant disruption, is a powerful and effective bargaining tool.

Currently, Te Whatu Ora Health NZ (effectively the government) is offering a 2 percent pay increase this year, a further 1 percent increase next year and a lump sum payment of $325. It also wants to extend the term of the agreement by three months to 27 months (which would dilute the actual annual percentage increases put on the table).

The Nurses Organisation (NZNO) is asking for a modest 3 percent increase this year (backdated to 7 April – the expiry of their last collective agreement) and 2 percent next year (effective April 2026). But the NZNO says pay is not the critical issue. Paul Goulter, Chief Executive of the NZNO says "The heart of this dispute is the failure of the government to provide guarantees that they will fund and resource staffing that meets what our patients need." He says it is too difficult for Health NZ to resource staffing levels because “the government won't support the resourcing necessary to do it."

Health NZ Acting chief clinical officer Dame Helen Stokes-Lampard said the offer made to the nurses was a fair one and Health NZ encouraged the union to focus its efforts on bargaining so outstanding issues could be resolved.

In 2022 a group of elite athletes representing New Zealand’s top rowers and cyclists formed The Athletes' Cooperative (TAC), a union, to represent them collectively to use the power of collective bargaining to obtain better support from their funder. The move came in the wake of a damning review into the culture of New Zealand's elite sporting environments following the suspected suicide of Olympic cyclist Olivia Podmore in August 2021. But a recent Court of Appeal decision has dashed the intentions of that elite group by confirming that they would need to be employees to collectively bargain.

TAC’s goals include pushing for a system where "our remuneration matches the expectation of our roles and responsibilities, and we have genuine financial stability". It said "the well-being and identity of all people are paramount".

Spearheaded by double Olympic rowing champion Mahe Drysdale, TAC issued a notice to initiate bargaining with High Performance Sport New Zealand Ltd (HPSNZ), the main funding body for these elite athletes and their programmes. HPSNZ does provide funding to some individual athletes but both TAC and HPSNZ agree that the athletes are not employees of HPSNZ.

HPSNZ declined to bargain with TAC on the basis that TAC’s members were not employees of HPSNZ. On two occasions the Employment Relations Authority ruled that TAC’s collective bargaining notices were validly issued and that HPSNZ was required to participate in collective bargaining.

On appeal, the Employment Court (sitting as a Full Court) determined that for a union to validly initiate collective bargaining it must be in an employment relationship with the employer and there can only be such a relationship when members of the union are employed by the employer.

TAC sought leave to appeal the decision to the Court of Appeal. The Court of Appeal declined the application in a decision given last month.  It said “the approach of the Employment Court to its interpretation of the relevant provisions of the Employment Relations Act is unimpeachable”.

But in coming to its decision, the Employment Court had referred to two other decisions that had extended the definition of “employee” beyond a current employer/employee relationship. In Maritime Union of New Zealand Inc v China Navigation Co Pte Ltd the Court allowed an extended definition of “employee” for the purposes of collective bargaining where there was a future, prospective or potential employment relationship.

The Employment Court also considered the Supreme Court decision in AFFCO v NZ Meat Workers and Related Trades Union that ruled that “persons seeking employment” were employees for the purposes of the strike and lockout provisions of the Employment Relations Act. In that decision the Supreme Court held that the statutory language should include persons seeking employment but should not include strangers who had not agreed on terms of employment.

HPSNZ’s director, Steve Tew, said his agency welcomed the Court of Appeal’s decision. "HPSNZ remains available to liaise with TAC, and any other organisation representing athletes in the high performance environment, to consider any issues that are unable to be dealt with in their direct relationship with their National Sports Organisations.

While it is hard to criticise the reasoning of the Employment Court and Court of Appeal that have “kneecapped” TAC’s objectives to use the influence of collective bargaining, the words coming out of Health NZ and the government over the nurses strike sound very much like that of Mr Tew and HPSNZ. Nice to hear, but unlikely to result in any meaningful change. More strikes are likely to be needed by the nurses to achieve their modest pay rises, and better staffing levels for the benefit of their working conditions and their patients. Read more....