While six former ex-Gloriavale women are engaged in a lengthy litigation case in the Employment Court arguing that they were employees and not volunteers a group of dancers are picketing outside Wellington’s Calendar Girls strip club and are looking to lobby Parliament over their rights as independent contractors.

It is reported that nineteen dancers working at Wellington's Calendar Girls were told not to come back to work by a Facebook post after requesting better work contracts.

On 30 January, 35 dancers from the Club decided to bargain collectively. The dancers have asked Calendar Girls management for two things; clear income records and a 60 percent cut of their earnings. It is understood that currently Calendar Girls dancers may pay up to 56 percent of their earnings back to their employer.

The dancers sent an email asking for changes. They say that the next day over half of them were told by the proprietor in a Facebook group post to "clear out their lockers".

Immediately after the proprietor's post asking the dancers to clear their lockers, his account made another Facebook post seeking accommodation for what appeared to be their replacements. In a statement, Calendar Girls management said 12 of the 19 dancers asked to clear their locker had already moved away or stopped working for the club.

The 19 dancers have formed a group called the Fired Up Stilettos and are seeking improved industry standards and better independent contractor protection. They say that, nationwide, dancer contracts are predatory by nature and are riddled with fines, retainer bonds and clauses forbidding work at competing venues and media engagement.

The dancers say that although they are treated as employees, as independent contractors they lack the employment protections of the Employment Relations Act. It is alleged that some clubs have really bad management and a culture of bullying.

Aotearoa NZ Sex Workers' Collective founder and national coordinator Dame Catherine Healy said there were many coercive practices across the industry. If they were properly scrutinised, many would not hold up under law.

Unfortunately, the cost of enforcing rights, whether as an employee, volunteer or contractor can be prohibitively expensive. The protracted Gloriavale case has seen Gloriavale apply to the Employment Court to represent itself because it cannot afford to continue to pay its lawyers to represent it.

Even when the Gloriavale case ends and there is a decision as to whether the claimants were employees or volunteers that decision may be challenged. In employment law circles, the Lord of the Rings film case of Bryson v Three Foot Six Ltd is notorious. Mr Bryson was a model maker and challenged his status as to whether he was an employee or an independent contractor. In the Employment Relations Authority he was found to be a contractor, in the Employment Court that decision was overturned and he was determined to be an employee. Then on appeal to the Court of Appeal and ultimately the Supreme Court Mr Bryson was found to be a contractor and then an employee respectively.

There is recent precedent for the dancers call to be allowed to bargain collectively. The Screen Industry Workers Act was passed into law last year. It allows workers to bargain collectively; either at the occupational level to cover all work by a particular occupation of screen workers across all screen productions, or at the enterprise level so it covers a single production or company.

An agreed collective contract needs to meet some minimum requirements including rates of pay, entitlements to breaks, and minimum procedural requirements for raising and responding to a complaint relating to bullying, discrimination, or harassment in the workplace.

In announcing the Screen Industry Workers Act the Minister of Workplace Relations and Safety said “All people in New Zealand deserve good jobs, decent work conditions and fair compensation for their work… our Government is delivering better outcomes for workers and continuing to build New Zealand’s reputation as a great place to work”.

It is arguable that the dancers, largely vulnerable young women, are in far greater need than those working on large film productions. Of course there is a huge difference between the film industry that brings in billions of dollars into the economy and the picketing dancers. It is unlikely that the picketing dancers will get any traction with the Government at present. However, the principles expounded by the Minister should be supported by all New Zealanders. Read more

Oranga Tamariki does not receive much positive media coverage. The latest report from the Independent Children's Monitor, Aroturuki Tamariki, says that Oranga Tamariki is still not meeting minimum standards for children in care. It reports that there has been no meaningful improvement since the last report, and the agency is still failing to meet the basic needs of tamariki in state care.

Oranga Tamariki has custody of more than 6000 children and is supposed to meet minimum standards of care that came into force in 2019.

That does not mean that Oranga Tamariki is not trying to improve its standards of care. In the recent decision of the Employment Court in Baillie v Oranga Tamariki the agency argued that a residential youth worker should not be re-instated to his position after he was dismissed.

Mr Baillie was employed in a secure residence for children and young persons run by Oranga Tamariki. In April 2021 there was an incident with a young person over his language and behaviour and Mr Baillie was kicked whilst remonstrating with him. The young person was then placed in a secure unit. The young person made a formal complaint about what happened. In responding to the complaint Oranga Tamariki decided to investigate six allegations about Mr Baillie’s conduct because it was dissatisfied with what happened before he was kicked.

At the conclusion of the investigation Oranga Tamariki was satisfied that Mr Baillie’s conduct was intimidating and aggressive and amounted to serious misconduct. Mr Baillie was summarily dismissed.

Mr Baillie raised a personal grievance for unjustified dismissal and successfully sought interim reinstatement in the Employment Relations Authority. However, the Authority then determined that his dismissal was justified.

Mr Baillie challenged the determination in the Employment Court and again sought reinstatement. Oranga Tamariki again defended its position that it had justifiably dismissed Mr Baillie. As an alternative, it argued that reinstatement was not a reasonable remedy.

Ultimately, the Employment Court concluded that Mr Baillie was unjustifiably dismissed.

Oranga Tamariki argued against reinstatement. It had concerns about the seriousness of the incident, an earlier letter of expectation given to Mr Baillie over a previous matter, and Mr Baillie’s lack of insight or acceptance of wrongdoing. It raised the relatively small size of the secure facility and concerns as to the message Mr Baillie’s reinstatement might convey to children, young persons and staff by downplaying and sanctioning the inappropriate use of force and abuse of power.

In coming to its decision to reinstate Mr Baillie to his former position the Employment Court considered that because it was practicable and reasonable to do so, it must do so because reinstatement is the primary remedy under the Employment Relations Act, and it applies irrespective of what other remedies may be awarded.

The remedy of reinstatement has had a chequered legislative history. Under the Labour Relations Act it was the primary remedy, under the Employment Contracts Act it was just one of the remedies, the original Employment Relations Act made it the primary remedy but that was later amended to make it a discretionary remedy. Most recently it has again been amended to make it the primary remedy.

As a former Chief Judge has noted “reinstatement to a former position in these days is far more valuable and far more important than it was in days not long ago when other employment could be readily obtained”. Another Judge has noted that to routinely award compensation instead of reinstatement is to create a system of licencing unjustifiable dismissal.

While reinstatement is not a commonly awarded remedy, either because it is not asked for by the dismissed employee or that there are solid practical reasons why it should not be awarded, it remains a substantial threat to employers when dismissing an employee. It helps ensure that the employer has good grounds to dismiss an employee and that the employer follows a fair process. Whatever the merits of the case, the serious threat of it remains a source of negotiating strength for an employee.

Mr Baillie has been vindicated by the Employment Court. But maybe it is important to know that Oranga Tamariki took a position, ultimately one that was legally wrong, to try and protect the tamariki in its care. Read more...

Recently in France, more than one million people joined a day of protests and strikes against plans to push back the age of retirement from 62 to 64. President Macron called the reforms "just and responsible" and said that France was facing a make-or-break moment.

The government says the system is heading for disaster because the ratio between those working and those in retirement is diminishing rapidly. From 50 years ago there were four workers per retiree; the ratio has fallen to around 1.7 per retiree today and is likely to sink further in the years ahead.

Nearly all other European countries have taken steps to raise the official retirement age. In Italy and Germany the age is 67, Spain 65 and in the UK it is currently 66.

In opposition to the planned reforms, some 80,000 protesters took to the streets of Paris, with demonstrations in 200 more French cities. Strikes severely disrupted public transport and many schools were closed. Buoyed by their success, unions are calling for another day of action on 31 January.

As recently as November last year, National's leader, Christopher Luxon, committed to raising the age of superannuation from 65 to 67 should the party get into power despite a recent report from the Retirement Commission recommending the age stays the same. The report said the Commission had concerns that raising the age might disadvantage manual workers and groups with lower life expectancies, including Māori and Pasifika.

Mr Luxon said increasing the age would be done gradually and the party was giving people 15 to 20 years' notice. When asked, Mr Luxon was unable to say how much money a person living alone on superannuation was paid a week. But he said the amount and how they survived off it was a different issue.

Last year the Organisation of Economic Cooperation and Development's (OECD) survey of New Zealand suggested raising the age of superannuation as a long term measure to control government spending. In response the Minister of Finance, Grant Robertson, rejected the OECD's suggestion stating that the Labour Party would never increase the superannuation age "There's a commitment that we've made, a social contract if you will, with New Zealanders to make sure they have dignity in their retirement and support in their retirement”.

Mr Robertson said “I recognise there is a cost associated with that, but that is the priority decision that we make. As an economy I believe we can afford that." He said making it to 65 years can be tough for many New Zealanders, especially those in physically-demanding jobs. However, he said that he could not speak for future Labour governments.

The recent report from the Retirement Commission highlighted that Māori are currently negatively impacted by the current system. Māori on average die seven years younger than Pākehā, suffer higher rates of disease often at an earlier age. Income disparities lead to lower rates of home ownership, fewer savings or a lower KiwiSaver balance.

Age discrimination at work is also a very real fact. Even with laws to protect against discrimination it is still a very real problem for many. Around 72 per cent of women and 57 per cent of men between the ages of 45 and 74 report that they believe they have been discriminated against due to their age.

But where are we currently placed? The Retirement Commission reports that already, one third of New Zealand’s workforce is aged 55+. New Zealand has one of the highest rates of people aged 65+ still working at 24%. This compares to the UK rate of 10%, Australia 12%, USA 19%, Japan 20% and Iceland 35%.

It is estimated that the number of people aged 65+ still working will increase as our population ages. It should be remembered that they will continue to contribute to the economy through taxes and buying power.

New Zealand has a new Prime Minister. There is an election this year. Will the National Party continue to commit to raising the age of superannuation? It seems a safe bet that the Labour Party will commit to retaining the current superannuation age (at least for now). Read more...

HR professionals are used to assisting managers to raise issues with employees. The conventional approach is to follow a number of steps set out in the Employment Relations Act; sufficiently investigate the issue, raise the issue with the employee, give the employee a reasonable opportunity to respond, genuinely consider the employee’s response, make a decision that a fair and reasonable could have made. In the case of poor performance, these steps often have to be repeated a number of times before dismissal is justified. We all know how long this usually takes!

Some leaders cut straight to the chase. They initiate a frank discussion with an employee (often termed a “fireside chat” or an “off the record discussion”). They identify the problem, are honest about whether the employee has a likely future with the business, and offer a solution (usually an exit with dignity, usually on terms which the employee is likely to accept). Such a discussion can be very useful when the parties are likely to be able to agree on an acceptable outcome.

If the parties are unable to agree on an acceptable outcome, that discussion is very difficult to overcome. The discussion usually smacks of pre-determination by expressing a genuine desire on behalf of the employer to terminate the employment relationship; the classic constructive dismissal scenario of resign or you will be fired!

This is what happened in the case of Blakeley v ACM New Zealand. Ms Blakeley was a branch manager with ACM. Ms Blakeley met with her Regional Manager in June to discuss the perceived poor financial performance of her branch. In July Ms Blakeley travelled to Auckland to participate in a Managers’ meeting. Her participation in the meeting was perceived as limited and disinterested. Her Manager ended Ms Blakely’s participation (or lack thereof) at the meeting early by calling a taxi and sending her home.

The following week Ms Blakeley’s Regional Manager asked HR to write a script for him for a meeting he intended to hold with Ms Blakeley. There was general agreement about the course of the meeting that was held. Ms Blakeley accepted that the meeting would proceed on a “without prejudice” basis. Her Manager told her that her performance and the behaviours she had been demonstrating were unacceptable. She was told that the company wanted to terminate her employment and that if she did not accept the company’s exit offer, her employment would most likely be terminated through a formal disciplinary process.

The company and Ms Blakeley were unable to agree on a financial settlement. Efforts were also made at mediation to agree on an exit for Ms Blakeley. When this was not successful, Ms Blakeley resigned two days later and raised a personal grievance on the basis that she was constructively dismissed.

The Employment Relations Authority concluded that it was almost a textbook illustration of one of the leading decisions on constructive dismissal. In the Woolworths case the Court of Appeal held constructive dismissal includes, but is not limited to, cases where:

• An employer gives an employee a choice of resigning or being dismissed;
• An employer has followed a course of conduct with the deliberate and dominant purpose of coercing an employee to resign;
• A breach of a duty by the employer causes an employee to resign.

The Authority Member said “I have no qualms concluding Ms Blakely was constructively dismissed.

The Authority also considered whether the so-called “without prejudice” meeting should be excluded from consideration. Again, the Authority had no difficulty in concluding that it should be considered in evidence. Ms Blakely had been informed that following the failure of the parties to agree on an exit that it was back to work as normal, pending a formal disciplinary process. She had already been told that the relationship was untenable and she had no reason to believe that the process would be conducted fairly or with an open mind. The employer’s intention had already been signaled.

The Courts only deal with situations where the parties have been unable to agree on an outcome. There are likely to be many cases that we do not see where bold discussions have been successful. However, before an employer embarks on a bold discussion, the employer should realise that agreement may not be reached; a Plan B and even a Plan C should be prepared in case the bold discussion does not go well.

 Published in HR Magazine Summer 2022