The Interislander ferry Kaitaki is again in the news after ferry passengers were forced to spend the night on board in Wellington harbour after the ferry developed issues with its steering just outside the Wellington heads.

Last year the complete failure of the Kaitaki’s engines caused it to drift dangerously close to rocks near Wellington harbour. According to the Transport Accident Investigation Commission’s report it was caused in part by KiwiRail's failure to replace safety-critical parts, which were years past their use-by dates.

Inevitably, the Kaitaki drama drew comparisons with the Wahine disaster of 1968 when that ferry capsized just inside Wellington harbour, with the loss of more than 50 lives, during one of the most severe storms to batter the city. 

In 2006 the Wellington Regional Council received a Navigational Risk Assessment report that rated a ferry grounding at or near the harbour entrance as the top likely risk. The assessment raised concerns "given the rapidly changing weather conditions at Wellington” about the adequacy of the tug fleet of the time, and influenced the decision to replace the 1970s tug fleet.

Earlier this year the container ship MV Shiling lost power after leaving Wellington harbour. This again raised concerns that the present tugs are not equipped to tow to safety larger vessels. 

The 2009 sinking of the Tongan inter-island ferry MV Princess Ashika resulted in 74 deaths and 54 people being rescued. The inquiry concluded that the disaster "was a result of systemic and individual failures". It said that "The tragedy is that they were all easily preventable and the deaths were completely senseless." Four men charged were found guilty on charges in relation to the disaster. The company was also convicted.

At the core of New Zealand’s Health and Safety at Work Act is the requirement that all duty holders, so far as reasonably practicable, eliminate risks to health and safety. Risks that cannot be eliminated must be minimised. A business has a primary duty of care to ensure, as far as reasonably practicable, the safety and health of its workers and that others are not put at risk by the work carried out as part of the business. It must further ensure that there is, amongst other matters, safe plant (such as a ship) and that there are safe systems of work (such as replacing safety critical parts by their used-by dates).

What is “reasonably practicable” involves assessing the likelihood of the risk occurring, the degree of harm that might result, what the business knows (or ought to reasonably know) about the risk and the availability and suitability of ways to eliminate or minimise the risk. An assessment is also done to consider whether the extent of the risk and the cost of available ways of eliminating or minimising the risk is grossly disproportionate to the risk.

Clearly the risk of harm is very high in the Cook Strait. A severe storm, or a failure of a ship, could result in drownings.

The Pike River disaster resulted in 29 deaths. WorkSafe, the Crown agency charged with upholding New Zealand’s health and safety laws, received criticism over its handling of the prosecution in relation to the Pike River disaster. WorkSafe initially laid 12 health and safety charges against Pike River boss, Peter Whittall, but they were dropped after more than $3 million was paid to the victims' families. Eventually the Supreme Court ruled that WorkSafe’s decision to offer no evidence was "an unlawful agreement to stifle prosecution".

Our most recent national disaster is Whakaari/White Island. Twenty-two people died from extreme burns and blast injuries when Whakaari erupted in 2019, and many of the 25 survivors were seriously injured. WorkSafe has prosecuted a number of parties in relation to the disaster. A number of the parties have already pleaded guilty. The trial is continuing for other parties at present.

Again, WorkSafe is not without criticism in this. The Ministry of Business, Innovation and Employment (WorkSafe sits under its umbrella) commissioned an independent review that found that it knew that unregistered operators were taking tourists onto the island for five years leading up to the eruption and did nothing about it. More alarmingly, WorkSafe’s safety audits of registered operators did not assess volcanic risk, only walking hazards.

The Kaitaki has been the focus of recent attention and surely there must be some serious discussions being had on the safety of the passengers and crew on board that vessel. But the Interislander is not the only ferry company operating out of Wellington. Bluebridge has also had a share of problems recently. There are also multiple agencies that have some control over our ferry services. New Zealand obviously needs a sea link between its main islands. Clearly we cannot eliminate the risk of running the service, but given the risks, the oversight of those responsible should sit heavily on their shoulders. Read more....

The report released earlier in July by Te Ara Ahunga Ora Retirement Commission is showing that the gender gap in retirement savings is going in the wrong direction in New Zealand. It highlights that there is a 25% gender gap on average KiwiSaver balances, up 5% in one year from the 20% gap identified in 2021.

Worryingly, the research showed that gender gaps in every age category widened, with larger gaps opening in younger ages groups, up 7% for 18 to 25 year olds (now 23%) and up 8% for 31 to 35 year olds (now a total 27% gap).

Additional analysis was carried out to understand the impact of significant hardship withdrawals, first home purchase withdrawals, and savings suspensions. Withdrawals and suspensionKiwiSaver - the gender divide growss did not explain the differences - more men were on suspensions and had withdrawn more money.

The large gender gap can be explained because KiwiSaver is linked to paid work. It disadvantages women who are more likely to move in and out of paid work to care for family members. Other contributing factors are also likely to be that women continue to earn less than men and are more likely to be engaged in casual and part-time work.

The statistics are even worse when ethnic differences are examined. The ethnic pay gap further influences women’s hourly earnings, with Pasifika women earning 72cents to each $1 for Paheka men, and Māori wahine earning 75cents. 

The gender and ethnic differences have resulted in lower KiwiSaver balances for women and can have a significant impact on the retirement for women; which is compounded as women on average live longer than men and need to fund their retirement for longer. 

This gender gap is also confirmed across the ditch. Research released earlier this year by the Australia Institute’s Centre for Future Work shows that women in Australia earn $1million less on average over their lifetimes than men and retire with $136,000 less in superannuation.

It found that women earning the median wage would accumulate about $AUD393,676 in superannuation, $AUD151,000 below the level defined as a “comfortable retirement” by the Association of Superannuation Funds of Australia. It reported that the gender gap occurs across all occupations and industries.

In Australia, men have higher average salaries than women in 95% of all occupations, including those where women dominate the workforce. For example, women account for 99% of all midwives, and yet are paid on average 19% less. It is reported that there are about 80 occupations in Australia where men make up 80% or more of the workforce and that workers receive an average salary above $100,000. By contrast, there are no occupations in which women make up 80% or more of the workforce and pay an average salary above $100,000.

When an occupation or industry is affected by historical and persisting gender inequity issues, differences in pay can significantly limit retirement savings.

Likewise, periods or absence from the workforce to care for children can significantly limit retirement savings. While employers contribute to their employees KiwiSaver schemes, this does not extend to cover periods of paid parental leave. The overwhelming position remains with the mother being the primary carer, with only 1% of paid parental leave being taken by men. In addition to the parental leave issue, women also tend to take on more of the parenting load, which may involve giving up full-time work to work only casually or part-time to support the household.

The Association of Superannuation Funds Australia is calling for action to protect the retirement outcomes of Australian women who take time out of the workforce, including superannuation being paid while on parental leave and a $5,000 bonus payment into a mother’s super account per child.

In New Zealand, the Retirement Commission recommendations are to continue to address gender and ethnic pay gaps, occupational gender segregation and ensure KiwiSaver contributions are maintained during periods of parental leave.

Those recommendations should be taken as a given. Surely more proactive steps should be taken to ensure that the KiwiSaver gender divide does not continue to grow, resulting in a significantly negative impact on the retirement for women which is simply unjust. Read more....

There is no doubt that the six former Gloriavale women who sued their former religious community worked extremely hard under punishing conditions for years on end.

The women left Gloriavale and made a complaint to the Labour Inspector. The Labour Inspectorate investigated their complaints, it concluded that the women were not employees and that the Inspectorate had no power to take any action on the womens’ behalf.

While the case has raised a number of interesting legal issues, it is not surprising that the Chief Judge of the Employment Court has taken a contrary view and has declared that the women were employees during their working time there.

Gloriavale denied that the women were employees. They claimed that the womens’ work was conducted on a wholly voluntary basis as an expression of religious commitment to live in a communal setting based on shared values, guided by the King James Version of the Bible. They argued that a finding of an employment relationship would be incompatible with the true religious nature of the relationship between the women and Gloriavale.

The Chief Judge instead found that the women were taught from birth that they were to submit to male leadership in all aspects of their life and were primed to work in the community's domestic teams. The women carried out work from a young age, which incrementally increased as they got older. The women progressed to fulltime work preparing food, cooking, cleaning and doing the laundry for Gloriavale's 600 members as soon as they left the community school, around the age of 15.

In a typical week, the Chief Judge noted, the female workforce in the kitchen produced more than 11,000 meals, while laundry workers washed at least 17,000 items. "The evidence clearly established that the work required to produce these outcomes was unrelenting, grinding, hard, and physically and psychologically demanding". Chief Judge Inglis said "I have no difficulty concluding that, when working on the teams, the plaintiffs were not carrying out work for their individual families or some notional big family."

Gloriavale argued that the women were volunteers and a declaration that the women were employees would up-end its communal economy and violate its members' deeply-held religious beliefs. The Employment Relations Act excludes certain categories of worker from the definition of “employee”, including volunteers. In order to fall within the excluded category of volunteer a worker must have no expectation of reward for their work and receive no reward for their work.

The Chief Judge concluded that, in exchange for their work, the women expected to be rewarded for their work. They would be permitted to remain in the community with their family and friends. They would also expect to receive food, shelter, clothing, religious support and guidance; and would receive the promise of spiritual redemption (as against the threat of eternal damnation if they left). The Chief Judge said that it became apparent that the Gloriavale leaders' concern about a finding of employment status was less about incompatibility with religious belief and more about its’ financial capacity to pay for the work the women did.

The Chief Judge also did not accept that a finding that the women were employees would be incompatible with the community’s chosen way of life and/or their rights under the New Zealand Bill of Rights Act. She said freedom of religion is subject to our general laws, including employment law. On the evidence, the Chief Judge noted that some members of the community (including a number of males, teachers and midwives) received payment for their work and this did not appear to raise concerns of the sort that were said to arise if the women had been paid. Nor did the Chief Judge consider that ability to pay was a relevant factor in determining employment status.

Given the findings, the declaration that the women are employees raises the interesting issue of where to next. Obviously, there is the issue of minimum employment standards; minimum wages, statutory entitlements such as annual leave and sick leave and employment protection in the sense of personal grievances and/or discrimination issues such as unpaid workers under the Human Rights Act.

In responding to the judgment, Gloriavale quickly said that they believed the decision is wrong, and they intend to appeal. "The decision has significant and wide-ranging implications beyond just our community. This includes how New Zealand faith-based communities, iwi and whanau choose to live and structure their household responsibilities."

This judgment follows a similar ruling by the Chief Judge last year, in which she found three former Gloriavale men were employees from the age of six, working long hours on farms and in factories of the community. The law in relation to who may be an employee is being given a real shake out in our courts. The Court of Appeal has also recently granted Uber the right to appeal the Employment Court decision that four Uber drivers were employees and not contractors. Read more...

Controversy over Cabinet Minister Kiri Allan’s conduct with staff in her office continues.

Staff in her office will usually be employed by Ministerial Services to provide operational support and advice to the Minister. Other staff are typically seconded into the Minister’s office from the Ministries or Departments that the Minister has accountability for. This raises the interesting question of whether there may be a triangular employment relationship, or whether there is a “controlling third party” that has some responsibility if things go wrong.

Last week the Department of Conservation Director-General confirmed in a statement that a staff member had ended their secondment to Minister Allan’s office early because working relationships were "not running as smoothly" as they might. She said it was bad enough that she had discussed it with Internal Affairs, which manages Ministerial Services, but no further concerns were brought to her attention and she believed relationships had improved.

The Chief Executive of the National Emergency Management Agency said he was also aware of concerns regarding relationships in the Minister’s office with staff seconded from his agency.

It is now reported that further senior public service staff have spoken out about workplace relationships relating to the Minister. The Minister has strongly denied the allegations and has said that no formal allegations have been brought to her attention.

When asked if she was a tough boss, the Minister said she didn’t think so. “I can be a bit of fun. I can be pretty passionate. And I think that I’m definitely not a Wellington politician. I’m from the regions. We do things a little bit differently. But I think I’m fair. I think I have clear expectations, and when those aren’t met, I’m clear about those as well.”

Traditionally, employment relationships involve two parties - the employer and the employee. More recently, changing patterns of work of work have seen the development of potential triangular employment relationships. The most obvious example is where a labour-hire agency agrees to supply a worker to another employer (the host). The host will pay a fee to the agency to cover the cost of the labour, plus a profit for the agency. In turn the agency pays the worker who agrees to work for the host under the host’s control.

To decide whether the worker was an employee of the agency or the host, the courts have applied a number of traditional tests, such as the intentions of the parties, to what extent the worker was integrated or controlled in the host’s business and who was responsible for disciplinary issues.

Since June 2020 the Employment Relations Authority has also been given the power to join a “controlling third party” to a personal grievance claim that relates to an action that is alleged to have occurred while the employee was working under the control or direction of the controlling third party. If the grievance is made out, the Authority is required to consider to what extent the controlling third party caused or contributed to the grievance and appropriately apportion remedies between the “employer” and the controlling third party.

Public Service Minister Andrew Little has noted Minister Allan has not been the subject of any formal complaints. "There hasn't been the opportunity to investigate what has happened and, although there are new allegations coming out now, it's hard to know where the truth lies”. "Senior public servants - they know what the process is if they've got staff who they don't think are being properly treated in a Minister's office." Little added the situation was unusual, given the usual process was for such allegations to be reported to the Public Service Commission and the Prime Minister's office "it appears, from what everybody is saying - including the Prime Minister - that that simply hasn't happened. That's surprising in this situation".

Should it ever get to the stage that a personal grievance is claimed by a worker in the Minister’s office, it does raise the interesting issue of where responsibility may lie. There is no absolute right for a Minister to be indemnified by the Crown for their actions, other than legal proceedings taken against them in the course of their official ministerial duties. 

As the situation stands, it is hard not to feel sympathy for Minister Allan. Natural justice would require that she is provided with the details of any complaints. So far, she is being exposed to unspecific claims in the media with little substance being provided. Read more....