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....

“History never repeats, I tell myself before I go to sleep” are the opening words of a well known Split Enz song. Unfortunately, there are enough historical events that tend to disprove this maxim.

Felyx Hatherley, a three year old boy, died at Point Lumber in Timaru after a stack of logs rolled onto him in March 2016. WorkSafe later laid two charges against the lumber yard. In 2020 the company was convicted and ordered to pay fines amounting to $32,000.

That same company was back in the news in 2022 when a young worker, Ethyn McTier, was crushed to death after becoming trapped and crushed in a conveyor belt drive roller at the lumber yard. A WorkSafe investigation found that there was no guarding along the length of the conveyor belt to protect workers, and that a risk assessment had not been done. A range of other machine safety defects were also found onsite. It appears that company had also failed to follow a safety consultant's recommendation to safeguard the conveyor back in 2017.

Through emotional and grief-stricken victim impact statements read to the court at the sentencing hearing in May 2025, the McTier family described the enormous effect his death had on their lives. Judge Dominic Dravitzki acknowledged McTier's family's "real and raw" pain and thanked them for sharing their victim impact statements.

At the hearing Judge Dravitzki also heard that the company had made losses in recent years and that a large penalty would jeopardise its future. As a result, Judge Dravitzki decided not to hand down his final sentence until he had further details about the company's finances.

Earlier this month Judge Dravitski imposed penalties against the Point Lumber company amounting to $450,000 ($250,000 for the company, $60,000 for its sole director Sean Sloper, and ordering a further $140,000 to be paid to McTier's family).

In commenting on the case WorkSafe acting Regional Manager, Darren Handforth, said Mr McTier's death had similarities to another recent workplace death at the Ballance Agri-Nutrients plant in Mt Maunganui in July 2023 where Wesley Tomich was killed on a conveyor belt. Mr Handford said "endangering workers in this way is careless in the extreme, because these deaths were clearly preventable. In no way is it acceptable to be able to be killed at work on a conveyor belt".

Mr Handford noted that in March this year, WorkSafe had conducted 304 assessments in the manufacturing sector and issued improvement notices in 67 percent of cases. He said that it signalled the progress left to be made by that sector.

Mr Handforth implored the manufacturing sector to “seize these two deadly incidents as a watershed moment for health and safety. We implore businesses to ensure their machine guarding meets safety standards. If necessary, engage a qualified expert to ensure your machinery is adequately guarded to avoid inflicting further tragedy on other families."

And yet the government is proposing to alter WorkSafe’s priorities from enforcement to advice, it says to reduce the burden of health and safety compliance for businesses. The Minister for Workplace Relations and Safety, Brooke van Velden, wants WorkSafe to shift from a “safety at all costs mentality” to a focus on “helping duty-holders do what is proportionate to the risks” and “rooting out over-compliance”, whatever that means!

In 2023 the NZ Business Leaders’ Health and Safety Forum produced a report on workplace safety and the toll on New Zealand workers. It reported that our fatality rates are where the United Kingdom was in the 1980s. Our fatality rate is twice that it is in Australia.

It seems that the lessons of the Pike River tragedy where 29 workers lost their lives are being forgotten. The findings and recommendations of the Royal Commission that formed the basis of comprehensive health and safety reforms look like they are being dismantled. WorkSafe estimates remain frightening; 750 to 900 work-related health deaths a year; 5,000 to 6,000 hospitalisations each year due to work-related ill-health; and that a worker is 15 times more likely to die from a work-related disease than an actual workplace accident!

Mark Twain famously said “history doesn't repeat itself, but it often rhymes”. Events may not occur again in exactly the same way but there often are enough similarities to make it seem like “déjà vu”. In a practical sense, studying history can give us insights into present and potential future outcomes. Read more...

Sometimes employment law cases throw us a gem. A recent UK Employment Appeal Tribunal decision in the United Kingdom is a Masterclass, showcasing the actions the employer did, and more importantly did not do, which cumulatively lead to the decision that the employee was unfairly dismissed.

Redundancy is known as a “no fault” dismissal because the employee is dismissed because their position is no longer needed by the employer, and not due to any fault or performance issue of the employee. As a result, it is a well-established principle in New Zealand employment law that an employer should offer an alternative position, where possible, to an employee in a redundancy situation. Similar obligations apply in the United Kingdom.

Hendy Group is a well-known car dealership in the UK operating over several brands. After a long career in car sales, Daniel Kennedy started work with Hendy Group in 2013 in used cars. He then managed a new distributorship for Kia cars (a brand which was new to him). Then in 2015 he took on a role as a trainer within the company’s Training Academy; a role in which he was required to provide training for all of the company’s sales teams across its workforce.

Unfortunately, due to the COVID pandemic, Mr Kennedy was made redundant in 2020. Mr Kennedy accepted that it was a genuine redundancy situation, and he accepted that within his team he was fairly selected for redundancy. But his complaint was that he was not provided with adequate or fair consideration for the possibility of him continuing to work for the Hendy Group in another role.

Mr Kennedy was told that he could apply for available jobs listed on the company’s intranet. The Human Resource Department took no steps to assist Mr Kennedy. The Judge was critical of this, noting that simply advising Mr Kennedy that he could apply for open positions advertised to the world on the same basis as every other applicant was not “help”. It appears that the most assistance that was offered Mr Kennedy was from his line manager who offered to speak to anyone who wanted to phone him, but the Judge noted that he would be treated as any other applicant, internal or external.

Mr Kennedy was provided with seven weeks’ notice of his dismissal, but a week after that notice he was required to return his laptop. He no longer had access to internal email or the intranet. The Judge noted that Mr Kennedy only had the same access as any member of the public to jobs notified on the website and that there were multiple sales positions available within that notice period.

Despite a lack of any proactive assistance, Mr Kennedy applied for a number of jobs with Hendy Group. He was interviewed for a sales manager position at Bournemouth Toyota. The Area Sales Manager noted that Mr Kennedy was very personable, interviewed well and had previous sales management experience; but he wanted someone with recent management experience and a proven track record of building a team. Without raising it with Mr Kennedy the Area Manager had concerns over the long commute for the potential position, and he felt that Mr Kennedy was simply keen on remaining employed.

Mr Kennedy applied for a sales advisor position at Christchurch Land Rover. He was not interviewed, and the role was offered to an external candidate. Mr Kennedy applied for another sales manager role at Salisbury Toyota; he did not hear back about that application. Mr Kennedy asked if could be “furloughed”, so that he could continue looking for alternative employment within the Hendy Group, but this was refused.

Finally, on his last day of employment, Mr Kennedy heard from HR. It included an email from HR a few days before (to an internal email address Mr Kennedy no longer had access to because his laptop had been returned). It updated him on his applications and informed him that his “applications are not going to be progressed” and while he was advised that they were not trying to “deter [him] from applying for alternative roles within the group…. the response will be consistent for other Sales related roles”.

Unsurprisingly, the Judge was highly critical of this: ‘‘This was the human resources department, which should have been supporting Mr Kennedy in a search for an alternative to dismissal, instead saying that they would not give him any sales role anywhere. This to a man who had spent 35 years selling cars, or training people how to sell cars. It is hard to imagine anything less helpful.”

Even after this, Mr Kennedy applied for a further role with the Hendy Group at Bournemouth Skoda. He did not receive any reply. Again, the Judge was critical: “I observe that the basic premise put by the Respondent’s witnesses is fundamentally unsound. It is that someone so good that he trains sales managers is not able to do the job he is training others to do.”

In New Zealand the obligation to seriously consider redeployment opportunities in redundancy situations arises out of the requirement to act in good faith, which amongst other matters, requires an employer to be active and constructive in maintaining a productive employment relationship. Ultimately the test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred.

Unsurprisingly, Mr Kennedy’s dismissal was found to be unfair by the Employment Appeal Tribunal in the UK. A similar outcome would be the likely result in New Zealand. Read more...

Last week Maritime NZ filed two health and safety charges under the Health and Safety at Work Act against KiwiRail over its grounding of the Interislander ferry Aratere nearly a year ago. Maritime NZ chief executive Kirstie Hewlett said the two charges related to failures by KiwiRail to keep crew and passengers safe while on board the ferry.

Only two weeks ago the Aratere was in the news over a power outage that caused it to anchor for nearly four hours near Picton while the problem was fixed. Another of its ferries, the Kaiārahi, recently suffered damage in large waves off Wellington’s south coast requiring its bow doors to be welded shut.

Not too long ago the Kaitaki, suffered a complete failure of its engines, causing 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.  Are the ferries accidents waiting to happen before they are replaced?

A report by the Forest Industry Safety Council in December 2024 concluded that forestry fatality data over the last decade shows that manual tree-fallers are estimated to be 300 times more likely to die at work than the rest of the New Zealand workforce; 51 forestry workers died on the job between 2013 and 2023.

In the past decade, New Zealand had 18 deaths and 397 reported injuries in its ports. The Ports of Auckland former chief executive, Tony Gibson, was convicted under the Health and Safety at Work Act earlier this year after being found guilty in the relation to the death in 2020 of a father-of-seven who was killed by a falling container. He was fined $130,000 and ordered to pay $60,000 in costs to Maritime New Zealand.

A further 26 year old stevedore at Ports of Auckland 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 which released its findings in a joint report.

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." TAIC Chief Commissioner Jane Meares said stevedoring has the second highest rate of fatalities of any industry in New Zealand.

One of our most awful workplace tolls was at 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 was not without criticism in that disaster. 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.

In 2023 the NZ Business Leaders’ Health and Safety Forum produced a report on workplace safety and the toll on New Zealand workers. It reported that our fatality rates are where the United Kingdom was in the 1980s. Our fatality rate is twice that it is in Australia.

The National lead government’s commitment to the safety of New Zealand workers speaks volumes. Without factoring the impact of inflation, WorkSafe’s funding has been cut by $2.2 million (a 1.6 percent cut) since 2023 - from $141.1million to $138.9 million. WorkSafe’s staff have been cut from 724 to 600 since 2023 (a 17 percent trim), although it has been reported that it is planning to increase to 675 staff.

WorkSafe reports that our workplace fatalities remain stubbornly high - there were 70 deaths in 2024 as a result of injuries from work. The latest reported data from WorkSafe shows 35,805 workplace injuries requiring more than a week away from work in 2022 (up from 24,480 in 2014). It is easy to imagine the awful impact this has on New Zealand families.

The frightening statistics in New Zealand go even further, WorkSafe has revised its work-related health estimates; work-related health deaths are estimated at 750 to 900 a year; there are estimated to be 5,000 to 6,000 hospitalisations each year due to work-related ill-health; and a worker is 15 times more likely to die from a work-related disease than an actual workplace accident!

Yet at the core of New Zealand’s Health and Safety at Work Act is the pretty simple concept of requiring all duty holders, so far as reasonably practicable, to eliminate risks to health and safety. Risks that cannot be eliminated must be minimised. They must also quite reasonably ensure that there is, amongst other matters, safe plant and safe systems of work. Whatever workers and their employers have being doing, it has not brought any meaningful change.

And the government is now proposing to alter WorkSafe’s priorities from enforcement to advice, saying this will help address concerns about underfunding and a "culture of fear". No doubt we will see these awful statistics continue! Read more...