Peter Boshier has been the most recent Chief Ombudsman for New Zealand. His appointment in December 2015 followed a distinguished career as a Judge. In May 2020 he was reappointed for a second five-year term.

Boshier turned 72 last week on 16 March. "The law is that I must resign from office upon reaching the age of 72” he said.

New Zealand’s Constitution Act recognises three branches of government; Parliament, the Executive (Ministers and government departments), and the Judiciary. Each operates independently of the others, commonly called "the separation of powers".

The Chief Ombudsman is one of three officers of Parliament independent from the Executive. The other two are the Parliamentary Commissioner for the Environment, and the Controller and Auditor-General. Neither of those two roles have a mandatory retirement age.

In the Judiciary, judges must retire from full-time judging at the age of 70, although they may be appointed for a further two years on an acting-warrant. It is said that security of tenure (permanent appointment), with a compulsory retirement age, are key protections for judicial independence.

Chief Executives in the Executive branch of government (government departments and crown entities) have no such security or independence. Under our Public Service Act and Crown Entities Act chief executives are appointed for terms of no more than 5 years, although there is the possibility of reappointment. Of course, this is an easy way to remove a Chief Executive who is perceived as being too old to do the job.

For our Members of Parliament there is no mandatory retirement age, although they do need to secure their seat in Parliament for the parliamentary term.

Our current Deputy Prime Minister turns 79 next month and is our oldest person ever to lead a party back to Parliament and into power (as part of a power sharing arrangement). His nearest rival was Labour’s Sir Walter Nash was 75 when he won the 1957 election. After being Prime Minister, Nash did go on to stay on as a Member of Parliament until his death at the age of 86, making him our oldest parliamentarian.

In the United States, President Joe Biden and his predecessor, Donald Trump, are set for an election rematch in November after clinching their respective parties’ nominations.  The contest will be between two candidates that many opinion polls suggest that many voters do not want. At 81, Biden is already the oldest president in US history with Trump being only a few years younger at 77.

Trump is facing 91 felony counts in four criminal cases, involving his handling of classified documents and his attempt to overturn the 2020 election, among other alleged crimes. Biden potentially faced charges over his handling of classified documents. However, the Special Counsel appointed to investigate decided not to bring charges. He cited Biden’s memory lapses in a bombshell report. His report described Biden as a “well-meaning, elderly man with a poor memory”, who “did not remember when he was vice-president” or “even within several years” when his son Beau had died.

For most of us in New Zealand, age is a prohibited ground of discrimination under the Human Rights Act, the Employment Relations Act, the Residential Tenancies Act and the New Zealand Bill of Rights Act.

However, there are a few limited exceptions to this. There may be a particular age or a particular age group that has a genuine occupational qualification for employment. For example, some foreign countries prohibit pilots-in-command aged above 60 years from operating certain aircraft. In this situation, it may be justifiable for an airline to establish a policy which prohibits those over 60 from holding that position.

At the other end of the spectrum, New Zealanders have to be 18 years old to vote for our Parliament. The minimum legal age of marriage is 18 years. However, a person from age 16 can be married with consent from a Family Court judge.

For young workers under the age of 18, the law is fraught with exemptions. School-aged students (under the age of 16) work hours must be outside of school hours and must not be between 10pm and 6am. There is a special exception for the agricultural sector which allows young people doing contract work who are over the age of 12 years to use tractors for agricultural work provided they are fully trained or they live on the property. An under 14-year-old cannot work as a babysitter or nanny without adult supervision because it’s an offence to leave any child under 14 unsupervised. An under 15-year-old cannot work in hazardous worksites such as a logging site or construction site. To join the Defence Force a person must be at least 16 and a half to submit an application and must have turned 18 by the time they graduate from the recruit course.

We may throw comments around such as “70 is the new 50” or “age is just a number” but the reality is that our age may be important. Of course, those age barriers are potentially discriminatory.  Read more....

The Prime Minister’s flip-flop on whether he will continue to claim a $52,000 accommodation allowance for living in the Wellington apartment he owns is important.

Parliament has enacted a safety net of minimum employment entitlements for New Zealanders, such as a minimum wage and entitlements to paid leave such as annual leave, sick leave and parental leave. For good reasons, the power of setting the pay of key public office holders is given to an independent body, the Remuneration Authority, which sets an annual salary for our Prime Minister, Ministers and MPs and certain other roles.

The Prime Minister plays on his background in big business; former CEO roles, business mergers and acquisitions - and so on. He is used to negotiating his own salary and terms and conditions of employment. While there is no doubt that the role of Prime Minister is a huge and difficult job, it comes with a salary of $471,000 plus certain other allowances and benefits. Mr Luxon took a big pay cut when he opted out of the private sector and took on a career of public service.

One of the most popular moves the Ardern lead government made was to freeze the pay of politicians back in 2018. The pay freeze is due to end this year, and a new review by the Remuneration Authority for setting politicians’ pay may mean that MPs get a huge increase to make up for six years of standing still. The outcome of the review may be contentious, particularly as the cost-of-living crisis continues for many New Zealanders.

Chief Executive roles are essentially about providing leadership and strategic direction to an organisation. Leadership is often seen to have an expectation to model behaviours that an organisation strives for. High profile companies and their leaders often face scrutiny by the public and their shareholders.

Mr Luxon’s, successor at Air New Zealand, Greg Foran, offered to reduce his base pay of $1.65 million by approximately 15 per cent ($250,000) at an early stage in the Covid pandemic as he led his team through the huge changes, including voluntary and involuntary redundancies, that were necessary at the time.

Last year, Air New Zealand’s competitor Qantas, experienced shockwaves when it was accused of allegedly selling tickets to flights that had already been cancelled over a three-month period in 2022. Late last year, it’s then CEO Alan Joyce, brought forward his retirement but he is still reported to have been paid over $20 million for his final year.

Fletcher Building Chief Executive Ross Taylor recently announced he was stepping down as he delivered news that the company had made a net loss of $120 million in the first half of its current financial year and downgraded its earnings guidance for the full year. The Board chair Bruce Hassall also resigned.

In the United States, Tesla was taken to task by a shareholder in the State of Delaware where the company is incorporated. In January 2024 the Judge decided to void the pay package that the Board awarded Elon Musk and helped him make the world’s richest person by ordering Tesla to cancel stock options worth about $US50 billion awarded to him as its Chief Executive Officer.

In January 2024 Stats NZ advised that the Consumers Price Index increased 4.7 percent in the 12 months to the December 2023 quarter and that the cost of living for the average New Zealand household increased 7.0 percent in the 12 months to the December 2023 quarter. Yet the new government which sets New Zealander’s employment safety net recently announced that the minimum wage will increase by only 2 percent, from $22.70 to $23.15, from 1 April 2024.

The housing allowance available to MPs is to assist those based outside of Wellington to find accommodation in the capital. Few prime Ministers have claimed it, with Mr Luxon being the first in at least 34 years. He is one of New Zealand’s wealthiest Prime Ministers, he told journalists “It’s an entitlement and I’m well within the rules,”. “I’m entitled to the entitlements that everyone else has.”

Mr Luxon has now said that he will not claim the allowance and will repay the allowance he has already been paid. Under the law, we should all know our rights. That is different from doing what is right. Read more...

While it is early days for New Zealand’s new coalition government, the cost of living crisis is still hurting a lot of working New Zealanders.

The National Party campaigned on tackling the crisis. “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”, Christopher Luxon said.

The minimum wage effects a significant proportion of our workforce and helps to enable many of our most vulnerable working New Zealanders support themselves and their families. Ministry of Business, Innovation and Employment (MBIE) figures show that there were estimated to be just under 80,000 people earning between the current minimum wage of $22.70 and $23 last year.

Last month Stats NZ advised that the Consumers Price Index increased 4.7 percent in the 12 months to the December 2023 quarter and that the cost of living for the average New Zealand household increased 7.0 percent in the 12 months to the December 2023 quarter.

Yet the new government recently announced that the minimum wage will increase by only 2 percent, from $22.70 to $23.15, from 1 April 2024. Workplace Relations and Safety Minister Brooke van Velden said given economic headwinds with a softening labour market and high net migration, a cautious approach was required to raising the minimum wage.

MBIE reviewed a range of scenarios on the wage increase. It recommended an increase of 4 percent to $23.60. It said adopting this increase would be "prudent" because the cost of living crisis was likely to remain an issue and the labour market will be more sensitive to minimum wage increases compared to the past two years, as unemployment looks to be increasing.

But it is understood that in a Cabinet paper that the Workplace Relations and Safety Minister had proposed and recommended that Cabinet only adopt a 1.3 percent increase.

Of course the Labour Workplace Relations and Safety spokesperson Camilla Belich said the "tiny" increase was not enough to help low income earners in a cost of living crisis. "This pathetic increase is beyond disappointing. As the price of goods and services continue to climb, the coalition government has chosen to turn a blind eye to our most vulnerable income-earners by not increasing minimum wage to a level in line with inflation."

Last year the then Labour government increased the minimum wage to $22.70, a boost of 7 percent (in line with inflation last year). The former Prime Minister Chris Hipkins said "I do understand that a number of small businesses will have concerns about this decision, however in a cost of living crisis we can't leave those on the lowest incomes behind".

The Employment Court has said that the Minimum Wage Act “is a statute of fundamental importance in the sphere of employment law in New Zealand. It is a statute that is designed to impose a floor below which employers and employees cannot go. It is directed at preventing the exploitation of workers, and is a statutory recognition of the diminished bargaining power in low paid employment”.

The CTU has argued that “A low minimum wage keeps New Zealand’s general wage levels low and traps many workers and employers in a low-wage low-skill equilibrium. It consequently has negative consequences for productivity, equality, poverty, the gender pay gap and labour participation rates”.

The issue of course is complicated. Increasing low pay is not the same as alleviating poverty. It is not uncommon for parents to work two or more jobs to support their family. Reports of students working up to full-time to help their family are becoming more common. Even workers paid above the minimum wage may face poverty if they need to support a large family, and low-paid workers may live in so called “high-income” households.

What is clear is that our lowest paid workers will continue to go backwards as the cost of living continues to increase. Future minimum wage increases by this government are also likely to fall well short of inflation and the cost of living. There is no sign yet of that relief promised by National in their election campaign.

Where does the pay for our most vulnerable workers cross the line from a minimum level of fair pay into exploitation? Read more...

The Ports of Auckland (POAL) has often been in the news for the number of accidents that have occurred at the Port.

Late last year POAL was fined more than half a million dollars after pleading guilty to two charges over the death of a stevedore who was killed by a falling container in August 2020.

A further stevedore at POAL, aged 26, died in April 2022 after being crushed by a container. That accident, and a further one at Lyttleton Port, were separately investigated by the Transport Accident Investigation Commission (TAIC) which released its findings in a joint report in October last year.

The Chief Investigator of Accidents, Naveen Kozhuppakalam, said the report identified broad safety issues for the whole stevedoring sector. He said that neither company monitored how well its employees were using rules and guidelines to manage workplace risks. "People become desensitised to risk, they take shortcuts or drift away from following rules, some of which are thought to be impracticable. Administrative risk controls only work with ongoing active safety leadership, good supervision, and a culture of safe working behaviour."

In the past decade, New Zealand has had 18 deaths and 397 reported injuries in its ports. TAIC Chief Commissioner Jane Meares said stevedoring has the second highest rate of fatalities of any industry in New Zealand.

A recent decision of the Employment Relations Authority, and on appeal to the Employment Court, has reinstated a dismissed stevedore, Ethan O’Brien, at POAL on an interim basis.

During his 13 months of employment Mr O’Brien had been caught out on a number of health and safety incidents. He was issued with a health and safety breach notice for driving a motorcycle on the port without a helmet or licence. A further two incidents occurred where Mr O’Brien made errors which resulted in damage being caused to client vehicles. Mr O’Brien also attempted to enter the POAL site without his access identification card. Although denied entry by security staff, he again attempted to surreptitiously enter the site but was again stopped by security.

Due to the high-risk work environment there is a Drugs and Alcohol Policy which provides for random drug testing for drugs and alcohol. In July last year Mr O’Brien was selected for random testing. When Mr O’Brien gave his urine sample the technician stood behind and to the side of him. His evidence was that he was not able to see Mr O’Brien’s genitals or urine stream as the sample was being provided. The technician could only see that he took the cup and that his arms were held in front of him in the region of his genital area while the sample was being provided.

The technician’s evidence was that the test cup was just over half full, and the cup did not feel as warm as it should have when Mr O’Brien handed it to him. The technician advised Mr O’Brien that the thermal strip had not been activated, which indicated that the sample was outside the required temperature range, so he was unable to continue with the sample and would be invalidating the test. The technician did not inform Mr O’Brien that his sample had also failed to meet the minimum level of creatinine required for a valid sample.

Mr O’Brien’s evidence was that he asked the technician, and then his manager, whether he could undertake another test. The technician did not recall that request being made and his manager strongly refuted that any request was made. Mr O’Brien was then sent home and suspended from work. Following a disciplinary process Mr O’Brien was dismissed.

Mr O’Brien applied for interim reinstatement (an order providing reinstatement of employment until a full hearing of the case can be heard).

On appeal, Judge King said that there is a strongly arguable case that Mr O’Brien was unjustifiably dismissed. However, when considering the overall justice of the case, the Judge said that she was satisfied that full interim reinstatement should not be ordered. She ordered that Mr O’Brien was to remain on the payroll until the full hearing of Mr O’Brien’s substantive claim in the Employment Relations Authority. She said that the expert evidence that there is a risk of serious injury or death if Mr O’Brien is reinstated to the workplace could not be taken lightly by the Court.

While the clear indications from the Authority and the Court are that Mr O’Brien will be successful in his claim that he was unjustifiably dismissed, he may be less successful in his application for final reinstatement.

Without detracting from the serious safety issues in the stevedoring industry, the stand taken by Mr O’Brien’s employer indicates that employees, or at least some of them, have their part to play in making the workplace safe for themselves and others. Read more....