The on-going government agenda of removing employment protections for workers continues with the latest being the move to significantly raise barriers for women to obtain pay equity for work that has been historically undervalued. The changes have been described by the opposition and unions as “a war on women”.

The Prime Minister when making the announcement said that the changes could save the government "billions of dollars”, but he has tried to backtrack on this message and is now saying that his government is committed to pay equity, collective bargaining, equal pay and pay parity. His words simply do not stack up!

Discrimination still continues in its many guises in New Zealand. A recent decision of the Human Rights Review Tribunal has upheld a complaint that a worker was discriminated against due to her pregnancy. Zelinda Doria worked full time for Diamond Laser Medispa Taupo Limited (Diamond Laser) as a beauty therapist for 11 months before she found out she was pregnant with her first child. Fifteen days after finding out she was pregnant, and seven weeks into her pregnancy, Ms Doria was told to immediately commence her primary carer leave early (maternity leave). Ms Doria claimed that this was discrimination on the basis of her sex (pregnancy) or on the basis of a “disability”. The claim was against the company, but also personally against the Manager and a director of Diamond Laser.

All of the defendants maintained that they were entitled to put her on early leave under the Parental Leave and Employment Protection Act.

Like many women, Ms Doria initially suffered morning sickness. She told her Manager and friend, Ms Blakeney-Williams, of her pregnancy. In the two weeks after finding out she was pregnant, Ms Doria was sent home early from work by the Manager on two days, she started late on two days and took six days of sick leave. Ms Doria saw her doctor twice during this time but did not suffer from any more morning sickness after these absences. Regardless of this, the Manager emailed Ms Doria to discuss her “parental leave and employment situation”. A meeting was organised, but quickly deteriorated and ended. Ms Doria was required to leave the premises. Diamond Laser’s employment advocate responded shortly after this saying “that given the comments and medical information shared, Zelinda will not be working until further notice”. A follow up letter was sent requiring Ms Doria to start her maternity leave the next day.

Ms Doria, through her mother, requested that the requirement to go on leave be cancelled, and that a work-related risk assessment be conducted by an independent professional in order to find a temporary solution. These requests were rejected. Ms Doria’s midwife also provided a letter to Diamond Laser stating her opinion that Ms Doria was “fit and healthy and completely capable of performing her duties”.

Ms Doria was ineligible for paid parental leave as her employer had directed her to go on maternity leave more than 6 months before her baby’s due date. She attempted to obtain alternative work, but as she was still an employee of Diamond Laser she found this difficult. Ms Doria also struggled to obtain income support from WINZ due to her still being employed by Diamond Laser.

The Human Rights Review Tribunal concluded that Diamond Laser’s actions could not be justified. It said the right to require a pregnant employee to go on maternity leave earlier than they wish is a significant exercise of an employers’ powers. It noted that it can have far-reaching consequences such as removing eligibility for paid parental leave. The Tribunal concluded that exercising this provision in the absence of any consultation with Ms Doria and without any independent medical and health and safety information was not justified.

Ms Doria’s evidence was that she felt “traumatised”. She described feeling “intimidated, stressed and insulted” and explained to the Tribunal that she was “worried that the stress would make me lose my baby”. Also the sudden change in her financial position was “just so stressful”. She described a pregnancy where she was so worried about financial matters and felt that losing her job took everything away. Due to the inability to access paid parental leave, she gave evidence about having to put her baby into care at a very young age and feeling she was not present for her baby when she needed to be.

The decision of the Tribunal is notable. Firstly, when considering the nature and consequences of the discrimination, the impact it had on Ms Doria and the disregard for the legalised protection from discrimination during pregnancy the Tribunal awarded Ms Doria $75,000.00 as compensation for her humiliation and injury to feelings and the loss of dignity she suffered - one of the highest awards of compensation ever in New Zealand. Secondly, the Tribunal held all the defendants liable - the company, the Manager and the director.

Legislation that provides minimum protections for workers are so important. So are protections to uphold values most New Zealanders would agree with; equal rights, equal pay – and meaningful means to uphold these values. Shame on this government for raising barriers for women to obtain pay equity for work that has been historically undervalued, but in some of our most valued occupations - Plunket nurses, community midwives, hospice nurses and health care assistants, primary care nurses, nurses in residential care. Read more...

New Zealand’s stretched health system is expected to come under further pressure as more than 5000 senior doctors have threatened to take part in an unprecedented strike for 24 hours tomorrow after several months of pay negotiations between the doctor’s union, the Association of Salaried Medical Specialists (ASMS), and Te Whatu Ora Health NZ stalled.

Workers do not take strike action likely. They know that they will not be paid for the time off striking. They also know that it can cause a lot of disruption, which may in turn affect any sympathy the public may have for their cause. But is it their last cry for help?

In Britain, a strike by council bin workers in Birmingham is set to continue after the latest pay offer by the city council was "overwhelmingly" rejected. The dispute is around the council's decision to remove Waste Recycling and Collection Officer (WRCO) roles. The union argues that the council is doing away with important health and safety roles and that about 170 affected workers are facing losing up to £8,000 annually due to the decision, with hundreds more losing out on the prospect of pay progression. The council argues that a "fair and reasonable offer" has been made and that every employee affected by the removal of the WRCO role could take an equivalent graded role in the council, LGV Driver training or voluntary redundancy packages.

Strike action began with union members staging one-day walkouts in January after the council’s announcement. Strike action escalated on 11 March when more than 300 union members began an all-out strike. The strike remains in place as the stand-off continues and as it continues bin bags and rubbish have been piling high in Birmingham streets.

In New Zealand the senior doctors are seeking a 12 percent pay increase; Te Whatu Ora has responded with an offer of between 1 and 1.5 percent. Stats NZ is reporting that the  cost of living for the average New Zealand household increased 3.0 percent in the 12 months to the December 2024 quarter. The rate of inflation has risen to 2.5 percent from 2.2 percent and Stats NZ also reports that the consumer price index rose 0.9 percent in the three months ended March, the biggest quarterly increase since the September quarter of 2023 when the cost of living crisis was peaking.

Health Minister Simeon Brown has struck out and accused the senior doctors of using patients as "bargaining chips" as part of their negotiating tactics. He said the union was putting "politics ahead of patients" and that the strike action will increase waitlists. The Minister also tried to “shame” the senior doctors by claiming that they are well paid, with an average salary of $343,500.

Sarah Dalton, the Executive Director of ASMS, said "patients are a sacrificial lamb to our under-staffed health service every single day," and that "if Te Whatu Ora invested in the doctors and other health workers we needed, we wouldn't be having to take this action. She reports that "we are wildly short-staffed and the employer is not putting in proper retention and recruitment strategies in place to retain the doctors we need." It is understood that average senior doctor vacancy rates are approximately 12 percent, although some hospitals have vacancy rates as high as 45 percent.

The union also challenged claims by the Health Minister that senior doctors were being paid an average salary of $343,500. It says the average salary for senior doctors was closer to $240,000 a year. The union claims that senior doctors at the top end of the salary scale in New Zealand are being paid less than their counterparts at the bottom end of the New South Wales scale. "We are bleeding people to Australia" Sarah Dalton says.

Labour leader Chris Hipkins says "hurling mud" at senior doctors ahead of industrial action is not helpful. He says "the sort of inflammatory language we've seen from Simeon Brown is more likely to guarantee further strikes, more likely to see more of our doctors leaving the country and moving to countries that will pay them better, and that's not going to be good for New Zealand patients."

But all is not well elsewhere, across the ditch the NSW public hospital system is also experiencing strikes. Despite being warned by the Industrial Relations Commission, more than 3500 doctors took part in a three-day strike across the state last week. It comes after the ultimate protest took place in NSW this year when hundreds of psychiatrists resigned over pay and conditions in what the Royal Australian and New Zealand College of Psychiatrists called a system on the verge of collapse.

Whether workers are council bin workers or highly skilled medical professionals, it does speak volumes when they take industrial action. The council bin workers probably cannot afford to not get paid while they fight for their jobs for weeks on end. Doctors can probably afford to lose a few days pay to protest over being properly remunerated, but it is in the context of being in an overworked health work force that is unlikely to see any meaningful change for many years. Read more...

A recent Employment Court decision confirms the importance of documenting whether the working relationship is one of employee or contractor. It also demonstrates that the coalition Government’s proposed changes to these laws will not necessarily make it easier to clarify whether a worker is an employee or a contractor. Workplace Relations and Safety Minister Brooke van Velden, last year when she outlined changes to the law, said it would "maintain the status quo that contractors who have explicitly signed up for a contracting arrangement cannot challenge their employment status in the Employment Court".

In the case, Craig Brown claimed that he was employed as Chief Financial Officer of The Clinician Holdings Ltd (TCHL) when the company no longer required his services.

TCHL first started contracting Mr Brown’s services through his consultancy company Surestart Consulting Ltd. Surestart had a regular stable of clients and its fee revenue averaged about $350,000 each year. Surestart also engaged a sub-contractor to assist with servicing Surestart’s clients, including TCHL. This arrangement was confirmed in writing with TCHL in an independent contractor agreement.

In late 2021 TCHL wanted Mr Brown to become its full-time CFO at a lower hourly rate than the rate he currently charged though his company Surestart. After a series of communications between Mr Brown and the CEO of TCHL (Ron Tenebaum) a verbal agreement was reached that Mr Brown would work for TCHL on a full-time basis from 1 June 2022. Mr Tenebaum and Mr Brown also discussed him owning shares in TCHL to complement his remuneration. This new arrangement was never documented, despite repeated references to this in emails.

From May 2022 Mr Brown began informing Surestart’s clients of his decision to move to new full-time employment at TCHL and that he would no longer be able to provide CFO services to them. And when the new arrangement started from 1 June 2022 Mr Brown was paid an hourly rate based on a salary of $200,000 (although still through invoices) and was able to take paid annual holidays and sick leave. There were also further discussions over the ensuing weeks regarding an offer of shares to Mr Brown.

In January 2023 TCHL made alternative arrangements with another CFO provider. Mr Tenenbaum then met with Mr Brown on 1 March 2023 to advise him that TCHL would be terminating their agreement at the end of the month. 

TCHL and Mr Brown agreed that Mr Brown would work for THCL on a full-time basis from 1 June 2022. However, they disputed the nature of the working relationship; Mr Brown contending he was an employee, with TCHL asserting that the independent contractor arrangement continued with Surestart with Mr Brown continuing as an independent contractor but on a full-time basis.

Judge King found that there was a clear break from the original contracting arrangement. From 1 June 2022 Mr Brown started his full-time role on new terms. The Judge referred to the original independent contractor agreement which had a typical clause providing that any variations to the agreement had to be in writing. She said that an oral variation would be a clear breach of that clause.

Having concluded that there was a new verbal agreement, the Judge then proceeded to apply the applicable common law tests (the control, the integration and the fundamental tests) to decide if Mr Brown was an employee or not. She also applied the new two stage approach set out in the latest Uber case judgment in the Court of Appeal on the employee/contractor issue. The Judge concluded that all those tests indicated that Mr Brown was in an employment relationship.

When the Employment Court determined in the Uber case in 2022 that the drivers of Uber workers were employees the Chief Judge commented that “employment status is the gate through which a worker must pass before they can access a suite of legislative minimum employment entitlements, such as the minimum wage, minimum hours of work, rest and meal breaks, holidays, parental leave, domestic violence leave, bereavement leave and the ability to pursue a personal grievance.” Contractors enjoy no such protections.

The use of contractors has been a common tool to drive down costs. In this case it has backfired badly. The agreement to work longer hours and the agreement to reduce the hourly rate all supported a new verbal agreement that was not documented in writing as required by the contractor agreement.

Fortunately for Mr Brown, either as an employee or contractor, he was earning a good hourly rate of $150 for his full-time work (but down from $300ph for his part-time work). Many workers do not enjoy that type of bargaining power.

The Workplace Relations and Safety Minister Brooke van Velden’s proposed changes to employee/contractor laws, she says, will make it easier to clarify whether a worker is an employee or a contractor. Judges and lawyers love to have agreements that are set out clearly in writing. Unfortunately, in practice this is not often the case. It seems unlikely that the proposed law changes are likely provide any more certainty. Read more...

Businesses like to control information, particularly if it is likely to negatively their business or reputation. Information, or lack of information, provides a means to control the narrative. Employers are willing to fight for the protection or control of that information in many forums. There have been some high profile examples in the media lately.

Food giant Talley’s is suing TVNZ for defamation over a series of 1News reports in 2021 based on information, including photographs, provided by whistleblowers on health and safety issues, which Talley’s strongly denies. As part of those proceedings Talley’s lawyers argued that to get a fair trial they needed to know who the whistleblowers were so they could test their credibility and whether it was responsible for 1News to rely on those sources. In his recent ruling, Justice Andrew said “I decline to require the defendants [TVNZ] to reconsider the claim of confidentiality, to order inspection for the Court, to set aside confidentiality, or to strike out the responsible publication defence.”

A recently published best-selling book by New Zealand author Sarah Wyn-Williams has been scathing about Facebook parent company Meta, where she used to work. Her claims include being sexually harassed by longtime company executive Joel Kaplan and Meta exploring the possibility of breaking into the lucrative Chinese market by appeasing government censors there. An arbitration court granted Meta's request to bar Wynn-Williams from promoting the book or making derogatory statements about the company based on a non-disparagement contract signed by Wynn-Williams when she worked with the company's global affairs team.

The Public Service watchdog says it is time to consider tougher penalties for government departments that break the rules laid out in the Official Information Act. Retiring Chief Ombudsman, Peter Boshier, has called the fines for breaches of the Act "laughable" and has suggested agency chief executives be held personally responsible for breaches.

In particular, the Chief Ombudsman publicly reprimanded Health NZ Te Whatu Ora. In his report he found Health NZ had created its own process "contrary to law", through its practice of telling information requesters it had made a decision - without saying what the decision was - at a point when an official information request was already overdue. The law gives government agencies 20 working days to respond unless they can justifiably claim one of several legislated-for reasons. He said a common reason given is that an agency needs to consult more or that the information sought will be released soon anyway (which the Ombudsman says in practice can actually take place months later when an issue is no longer in the public mind).

The Chief Ombudsman said these things needed to be done in a quick and timely manner, "people have the right to make those decision-makers that affect them accountable, they've also got the right to participate in democracy."

The provision of relevant information helps address the inherent power imbalance in employment relations. The duty of “good faith” is wide but it explicitly provides an obligation on an employer to provide relevant information to an employee when it is considering a decision that will, or is likely to, have an adverse effect on the continuation of employment of an employee. If that information is not provided, it enables an employee to claim that any decision is not justifiable.

What is “relevant” sometimes becomes an issue. Perhaps the most well-known case involved a restructure at Massey University. Two senior lecturers whose positions were disestablished applied for new positions at Massey. They were unsuccessful and sought access to documentation created during the selection process including, amongst other things, the selection panel’s notes (including scoring sheets) and information relating to other candidates. This created two fundamental problems for Massey. The first was that it had told the selection panel that it considered the process confidential so that they could be “open” with their opinions. The second was that a portion of the information requested had not been recorded in writing. Massey refused to provide the information on the basis that it simply did not exist, and/or that it was confidential.

The Employment Court rejected those arguments and commented “when a business is restructured, the employer will, in most cases, have almost total power over the outcome. To the extent that affected employees may influence the employer’s final decision, they can do so only if they have knowledge and understanding of the relevant issues and a real opportunity to express their thoughts about the issues… knowledge is the key to giving employees some measure of power to reduce the otherwise overwhelming inequality of power in favour of the employer”.

The Employment Court comment is widely applicable. Information, or misinformation, affects ordinary people, and their ability to influence decisions that will affect them and their families. Read more...