Waitangi Day marks the signing of New Zealand's Treaty of Waitangi or Te Tiriti o Waitangi in Māori between the British Crown and Māori chiefs. Now that Waitangi Day has passed for another year, and the celebrations, demonstrations and political grandstanding are over, it may come as a surprise to many New Zealander’s that tikanga Māori (the customary rules which govern Māori life) has quietly gained recognition in employment law in New Zealand.

For years, tikanga Māori has increasingly been recognised by our courts and legislation. The most recent significant case was the Supreme Court decision on whether Peter Ellis, under tikanga, would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa, rather than an individual's life.

There have now been a number of decisions of the Employment Court affirming that tikanga may be an important consideration when an employer is considering dismissing an employee. In Pact Group v Robinson the employee said that as a Māori her mana was being impacted by the disciplinary process the employer was undertaking. In reaching her decision that Ms Robinson was unjustifiably dismissed the Chief Judge said that there was nothing to suggest that these concerns were seriously considered or factored into the way in which the company proceeded. The Judge said that the process was hurried and conducted in a distanced, impersonal way that undermined, rather than maintained, the employee’s mana.

The Judge also referred to Utu, “the action undertaken in reciprocity”, and its link to mana. To show and reciprocate generosity enhances mana and strengthens relationships, whereas the failure to give or receive utu diminishes the mana of both parties to the relationship. The employee gave evidence that she felt as though her treatment by the company failed to reciprocate the care, empathy and consideration she was expected to bring to her own role as a community support worker for the company.

In GF v Comptroller of the New Zealand Customs Service the Employment Court Chief Judge also concluded that the employee was unjustifiably dismissed. In addition to finding the dismissal unjustified, during the hearing the Chief Judge heard submissions on whether tikanga should have relevance in her decision-making process. She found that because Customs had incorporated tikanga and tikanga values into its policies and employment relationships, they were relevant. She said “the tikanga/tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship-centric, based on mutual obligations of good faith, and focused (where possible) on maintaining and restoring productive employment relationships.”

The Chief Judge also concluded that Customs failed to meet what she referred to as heightened good employer obligations imposed on Customs, as a good public service employer under the Public Service Act “to honour a commitment it has incorporated into its employment relationship with all employees (Māori and non-Māori) to act consistently with applicable tikanga/tikanga values”. That Act requires government departments to operate a “good employer policy” which amongst many things requires the recognition of the aims and aspirations of Māori and the employment requirements of Māori.

The contentious Treaty Principles Bill is an ACT Party policy, to enshrine what it says the Treaty means into law. The Act Party says that the Treaty has been interpreted by the courts, the Waitangi Tribunal and successive governments in a way that has gone beyond its original intent. Many New Zealanders disagree. Thankfully, the Act Party’s coalition partners have already doomed the Treaty Principles Bill. Both the New Zealand First and National Party leaders confirmed that recently during speeches at Rātana. The Treaty Principles Bill is "dead in the water", New Zealand First leader Winston Peters said. The bill is "never going to go past the first reading". Likewise, the Prime Minister again confirmed that "National won't support the bill - it will be voted down and it won't become law."

Unlike the Treaty Principles Bill, the intentions of the Employment Relations Act are well meaning - to build productive employment relationships; to acknowledge and address inherent inequality of power in employment relationships; to protect the integrity of individual choice; and to promote the effective enforcement of employment standards. Read more...

As part of the Government’s drive to cut costs, it has made much of the large contract awarded to multi-national company Compass which leads a consortium to provide cheaper school lunches.

Likewise, multi-national company Uber has been allowed to appeal the Court of Appeal decision confirming an Employment Court declaration that Uber workers are employees. Whatever, the outcome of that appeal the law in New Zealand relating to contractors is likely to have a significant “shake-up”. It is on the National lead government’s agenda this year.

The cost savings made by the Government in the school lunch programme has come at a huge cost to the many vulnerable employees the programme has employed, particularly in smaller rural communities. New Zealand has recognised for years now that further legal protection is needed for particularly vulnerable workers. These workers are often employed in industries such as cleaning or catering where restructuring situations are frequent, usually with the intention of driving down costs and undermining workers terms and conditions.

These “vulnerable employees” are meant to have the right to elect to transfer to the new contract holder on their existing terms and conditions of employment (preventing the new contract holder cutting pay rates and other terms of employment). If the new contract holder then decides to make the “vulnerable employees” redundant it is obliged to honour the vulnerable employees contractual entitlements to their redundancy entitlements, such as notice. If there is no provision for redundancy compensation, the new contract holder is obliged to negotiate in good faith with vulnerable employees.

Until Associate Education Minister Seymour announced that Compass would take over much of the school lunch contract, existing suppliers to the programme were unaware that their contracts were up for tender and were not able to retender for their contracts or give their vulnerable workers advanced warning that their jobs would likely be lost. It is understood that approximately 2,000 employees have now lost their jobs.

Even worse, just prior to Christmas, members of the Compass consortium finally began consulting with the vulnerable employees, providing them with only a few working days notice (given public holidays and Christmas closures) before so called “final decisions” were made on whether they would have jobs when the new school terms commenced again. Most were made redundant.

It is also understood that despite the legal obligation to bargain in good faith for redundancy compensation in situations like this, the Ministry of Education has made no provision for redundancy entitlements for vulnerable workers in the contract awarded to the Compass consortium. It is understood that no redundancy compensation is being offered by Compass. Despite Official Information requests being made, the Ministry is still not providing details of the contract awarded to the Compass consortium.

The use of contractors has also been a common tool to drive down costs. Following the Court of Appeal decision last year that the Uber contractors were in fact employees Workplace Relations and Safety Minister Brooke van Velden  last year outlined changes to the law she says will make it easier to clarify whether a worker is an employee or a contractor. She explained that the changes were part of the National and ACT coalition agreement where it agreed that the parties 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".

This approach harks back to the National government approach when the Employment Contracts Act was enacted in the 1990s. The leading case on the issue concerned the legal status of a courier driver whose contract gave the company extensive control over his operations; but he was obliged to provide a company branded vehicle, he was responsible for his insurances and other associated costs and he was remunerated on a “per trip” basis. The Court of Appeal concluded that the courier was a contractor because his contract said so.

Now the Employment Relations Act requires the Court to consider “the real nature of the relationship” in determining whether a worker is an employee or a contractor. In doing so, the Court must consider “all relevant matters, including any matters that indicate the intention of the persons” and “not to treat as a determining matter any statement by the persons that describes the nature of their relationship”. Put more simply, a statement that the worker is a contractor is not enough to determine the issue.

Until the Uber cases, our most notable court decision on the employee/contractor issue is Bryson v Three Foot Six. Mr Bryson was a model maker and was fully integrated into the workings of the film production. The Supreme Court finally concluded that Mr Bryson was an employee. Famously, the John Key lead National Government then changed the outcome of the Bryson decision for the film industry by enacting the so-called Hobbit law - effectively making workers in that industry contractors.

When the Employment Court determined that the Uber workers were employees in 2022, 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.

Last year changes to employment law in Australia came into effect that enable the Fair Work Commission to provide platform or gig economy drivers, food delivery riders and parcel couriers with minimum employment standards; including superannuation, personal injury insurance and a safety net on pay. Likewise, the UK provides protection to some minimum entitlements for a third class of worker – “dependent contractors”.

Unfortunately, the governments planned changes on the employee/contractor issue are likely to further close the gate on vulnerable workers and deny them access to minimum employment entitlements. The industries that employ workers that are vulnerable are likely, like Uber, to simply label their workers “contractors”. Read more....

It is a tough job being a cop, it may be even a harder job being a top cop, but it seems impossible to be the top cop and a woman in New Zealand.

For a short period of time a woman filled the top job. Deputy Commissioner Tania Kura was in the role on an interim basis when the former Commissioner, Andrew Coster, departed to head up the Social Investment Agency.

Another Assistant Police Commissioner, Richard Chambers, got the top job over another incumbent Deputy Commissioner, Jevon McSkimming.

There are some top police jobs where the incumbents are women. New Zealand has twelve police districts, of whom three district commanders are women, Superintendent Jeannette Park, Superintendent Naila Hassan and Superintendent Tracey Thompson.

The Police Executive Leadership team has eight leaders, of whom three are women. One of them is Deputy Commissioner Tania Kura; she became the first female police officer to be appointed Deputy Commissioner in 2020. The other two female leaders come from public service backgrounds.

What does the New Zealand police look like in relation to women. The New Zealand Police 2022 annual report, showed 2602 women were officers, compared with 7740 men (25% of the workforce). This was up from the 2017 figures, the ratio was 1730 women to 7108 men (19.5% of the workforce force).

However, as police officers progress in their careers it seems female representation drops further. The 2022 report shows female representation falls at the rank of sergeant to 14.5%. This was slightly up at 16.5% for senior sergeants, 17.5% for inspectors, and 14% for superintendents.

Across the Tasman, Christine Nixon became the first female chief commissioner in any Australian state police force, being appointed Chief Commissioner of Victoria Police from 2001 to 2009. Karen Webb joined the New South Wales police in 1987 and became Police Commissioner in 2022, becoming the first woman to hold that position in that state. Shortly after, Donna Adams was appointed as Tasmania’s Commissioner of Police in 2022. “When I joined Tasmania Police straight out of school, I certainly didn’t think I would one day be Commissioner of Police, let alone as the first female Commissioner in Tasmania Police history – some 105 years after women were first allowed to join the service” she commented.

In the United Kingdom, in 2017 Dame Cressida Dick became the Metropolitan Police Commissioner, becoming the first woman to take charge of London's police force. Her appointment meant that for the first time all three top policing jobs in the UK were held by women; the Metropolitan commissioner, the head of the National Crime Agency and the president of the National Police Chief's Council. Ironically, she dramatically resigned in 2022 after London’s mayor accused her of failing to deal with a culture of misogyny and racism within Britain’s biggest police force.

Compared to many other countries, in recent times New Zealand has had many women in top leadership and government roles, including three female Prime Ministers. In 1999 Helen Clark became the second woman (and first elected woman) Prime Minister of New Zealand. She served three terms in office. When she resigned she joined the United Nations. However, when she ran for the position of Secretary General in 2017 she was unsuccessful. Clark reported that while she did not find that there was a glass ceiling in New Zealand to break, she met one in the United Nations.

Dame Catherine Tizard, a former Mayor of Auckland, became the first woman Governor-General in 1990 and held the post until 1996. Dame Silvia Cartwright became the first woman High Court judge in 1993. In 1999 Dame Sian became the first woman Chief Justice of New Zealand. In 2022 for the first time the New Zealand Parliament had a majority of women.

In the private sector, a lot of our major banks are headed up by women Chief Executives; Vittoria Shortt at ASB; Antonia Watson at ANZ; Catherine McGrath at Westpac; and Kerry Boielle at TSB.

Coming back to the New Zealand Police; there have been a number of women Police Ministers; Ann Hercus, Annette King, Anne Tolley, Judith Collins, Paula Bennet.

In this day and age, with women succeeding in all manner of leadership positions, the question needs to be asked; is there a glass ceiling for women in the New Zealand police force? Is this a simple but dreadful case of discrimination. Alternatively, more insidious but just as horrifying, is there simply not the environment in the police that supports and recognises women as leaders, or an environment where women do not want to lead the organisation. Read more...

How important is the safety of workers and customers to us as the risk of theft and violence appears to escalate in the retail sector? The sometimes conflicting obligations owed by employers under Privacy laws and Health and Safety laws are being worked through by some of our biggest retail companies.

In Australia, Bunnings was publicly admonished last week by the Australian Privacy Commissioner after concluding that it had breached the privacy of potentially hundreds of thousands of customers by using facial recognition technology (FRT) in a trial it was running in New South Wales and Victoria.

Bunnings said it used the FRT to protect staff against "serious" crimes and violent interactions it says are carried out by a "small number of known and repeat offenders". In criticising the report Bunnings released confronting CCTV footage of violent customer incidents. The compilation footage shows customers threatening Bunnings staff members with weapons and physically attacking them. Bunnings managing director Mike Schneider said "everyone deserves to feel safe at work. No one should have to come to work and face verbal abuse, threats, physical violence or have weapons pulled on them."

In responding to the report, Schneider said "We had hoped that based on our submissions, the Commissioner would accept our position that the use of FRT appropriately balanced our privacy obligations and the need to protect our team, customers, and suppliers against the ongoing and increasing exposure to violent and organised crime, perpetrated by a small number of known and repeat offenders".

In New Zealand, the supermarket industry giants are using digital recording technology in an effort to make staff and customers safer. Woolworths is rolling out body cameras at stores as part of a $45million investment in staff safety measures. In a trial in 17 stores the supermarket chain reported that staff felt safer and that the cameras helped de-escalate conflict and abuse from customers.

Woolworths says that physical assaults more than tripled in the last six years from about 60 in the 2018 financial year to about 230 in 2024 and that thefts also tripled from about 5500 to 15,000 in the same period. Verbal threats are said to be on the rise as well. "These range from threats to injure, threats to come back after the store is closed, threats to kill. It's really awful and unacceptable" Woolworths head of health safety and wellbeing Denva Wren reported.

Foodstuffs is trialling FRT to scan and make a biometric template of each shopper as they enter their premises to see if they match a watchlist of people identified with repeated harmful behaviours. To support the implementation of the trial Foodstuffs says there were 4719 incidents of retail crime reported in their stores in the last quarter of 2023, including 513 trespass breaches.

Foodstuffs North Island chief executive Chris Quin said the trial was important because the company hoped to establish whether facial recognition would keep staff and customers safe without compromising their privacy. He said "Shockingly, one of our security team was stabbed recently and our people are being punched, kicked, bitten and spat at.” "All too often it's the same people, coming back to our stores despite having already been trespassed, committing more crime, and often putting our team members and customers at risk of abuse and violence."

New Zealand Privacy Commissioner, Michael Webster, said the Woolworths body cameras were similar to CCTV. He said its use was not as intrusive as the FRT which is being trialled by its market rival - Foodstuffs.

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.

In admonishing Bunnings, Australian Privacy Commissioner Carly Kind said "Facial recognition technology may have been an efficient and cost-effective option available to Bunnings at the time in its well-intentioned efforts to address unlawful activity, which included incidents of violence and aggression". She said that Bunnings chose the "most intrusive option" and interfered with the privacy of everyone who crossed the threshold of those stores in that period, not just high-risk individuals. “Just because a technology may be helpful or convenient, does not mean its use is justifiable".

The New Zealand Privacy Commissioner is taking an evidence based approach in assessing the Foodstuffs FRT trial. The awful simplicity is that while CCTV footage is helpful in prosecuting acts of violence and other crimes, those acts will have already occurred. Just as simple, elimination or prevention is far better. FRT with reasonable safeguards around privacy appears to be a useful tool in the prevention of harm to workers by repeat offenders and assist employers meeting their obligation to have a safe place of work for their employees and customers. Read more....