Contents Page: NZJER, 2016, 41(2)Name

Gordon Anderson

Title

Introduction

Page
Numbers
1-2
3-20

Virgina Mantouvalou

Labour Law and Human Rights

Dr Jonathan Barrett

Employee-Citizen of the Human
Rights State

21-35

36-57

Paul RothPrivacy Law Reform in New
Zealand: Will it Touch theWorkplace?

58-70

Jeff Sisson

A Bad Day at the Sausage
Factory: The Health and Safety at
Work Act 2015

Victoriya
Nichols

Occupational Health And Safety:
Pashorina- Why And How Should Worker
Participation Be Enhanced In
New Zealand?

Dawn Duncan

Regulating Work That Kills Us
Slowly: The Challenge ofChronic Work-Related Health
Problems

71-86

87-103

New Zealand Journal of Employment Relations, 41(2): 1-2

Introduction
The third biennial conference of the New Zealand Labour Laws Association was hosted by
the Faculty of Law at the Victoria University of Wellington on 27 November 2015. In thisissue of the Journal, we continue the tradition developed after the previous two conferencesof publishing a special labour law issue containing a selection of papers presented at theconference. In doing so, it is our intention to disseminate to a wider audience the discussions
and issues presented at the conference by a broad range of contributors, both young and old,from academia and from legal practice. In this issue of the Journal, we publish six papers,with further papers to be published in a second Issue.
The 2015 conference theme, Challenges of Regulating Future Labour Markets, was chosen torecognise that traditional labour law structures are under increasing pressure from a variety offorces. These include the continuing effects of labour market deregulation that have resulted
in the deunionisation of the workforce and increased individualised employment. This, inturn, has led to the increased commodification of labour manifested in a number of forms.
These include increased job insecurity as new forms of employment relationships are createdto avoid traditional employment protections and the increasing intrusion of employment into
the private life of employees.
One response to these pressures has been an increasing interest by labour law scholars in theinterface between human rights law and labour law. In this issue, we publish three papers
dealing with this theme. The first, by the conference’s keynote speaker, Dr Virginia
Mantouvalou of University College London, looks at this interrelationship from a broad
perspective but focusses particularly on developments within Europe through theinterpretation of the European Convention on Human Rights and the jurisprudence of theEuropean Court of Human Rights. These developments are mixed but there has beenrecognition that at least some labour rights are also human rights, particularly in the case of
the exploitative use of labour.
Jonathan Barrett’s paper deals with the belief of some that human rights stop at the workplacedoor. He considers the position of rights-bearing citizens as employees and argues that therights and responsibilities of citizenship should be fully exercisable within employer
organisations and that contractual terms restricting an employee’s rights should be void. He
stresses the important point that corporations, in particular, should be made more accountable
to the societies which enable them to exist and prosper.
The final paper on the human rights theme is by Paul Roth and deals with the review of New
Zealand’s privacy law and its possible influence on workplace privacy. The paper’s
conclusion is pessimistic – regulation of the “diabolical partnership” of negative attitudes
towards workers combined with technological advances is not in prospect. At the same time,
the workplace becomes broader as worker conduct beyond the bounds of the workplace isincreasingly seen as the employer’s business.
The final three papers deal with aspects of health and safety law, perhaps the most visible
challenge for labour law over the last few years. The Pike River mine disaster in 2010highlighted New Zealand’s appalling safety record and the associated regulatory failures.
Following the reports of the Pike River Royal Commission and the report of the Independent1

New Zealand Journal of Employment Relations, 41(2): 1-2
Taskforce, the Health and Safety at Work Act 2015, modelled on the Australian Model
Health and Safety Act, was passed. However, while the new HSW Act made major reforms
to the previous legislative framework, its passage became increasingly politicised and anumber of the proposed reforms, especially those relating to worker participation in healthand safety, were significantly weakened. The papers by Jeff Sissons and Viktoriya PashorinaNichols deal directly with this failure to properly provide for worker participation.
Sissons argues that, while the Government had both public support and a legitimate
opportunity to address New Zealand’s poor workplace health and safety record, it fell at the
final hurdle, resulting in a law that falls far short of comparable countries like the United
Kingdom or Australia and which constitutes another chapter in the history of muddledcompromise that has led to the death of thousands of New Zealand workers.
Pashorina-Nichols argues that worker participation can support OHS in any workplace andthat, of the many worker participation practices available, the two that are the most suitable
are H&S representatives and H&S committees. Unfortunately, while the HSW Act provides
for those practices, the original proposals were substantially weakened, allowing PCBUs(person conducting a business or undertaking) to undermine them and, in the case of abusiness with fewer than 20 workers, to reject any request for either practice if the business is
not considered high-risk.
The final paper by Dawn Duncan addresses the “tragic paradox” of New Zealand’s responseto chronic work-related harm and advocates reform in three key areas – the need for the ACC
scheme to be reoriented from the nature of the health problem to its ‘work-relatedness’ andfor its coverage to be extended to a wider range of health conditions; a change in willingness
and approach to regulating for healthy work; and the development of a new set of
enforcement tools. One such tool may be a statutory ‘right to request’ that enables workers todeal with hazardous work before it results in health problems.
Finally, I would like to acknowledge those who provided the support to make the conference
possible and this publication possible. The success of the conference was largely due to theadministrative support of Rozina Kahn at the Victoria Law School. Particular thanks, onbehalf of both myself and the authors, are due to Louise Grey who edited the papers in thisissue and the forthcoming issue of the Journal. Louise’s work went well beyond proof
reading and footnoting and her editorial skills contributed significantly to the transformationof the conference papers into publishable articles.
Guest editor
Gordon Anderson, Professor of Law, Victoria University of Wellington.

2New Zealand Journal of Employment Relations, 41(2): 3-20

Labour Law and Human Rights
VIRGINIA MANTOUVALOU
Abstract
This article examines the relationship between human rights and labour law. It first
explores the reasons for the resistance to examining labour rights as human rights.
Second, it turns to European human rights developments in order to assess the caselaw of the European Court of Human Rights in this context. It presents aninterpretive technique adopted by the Court, the integrated approach, which takes
note of social and labour rights in the interpretation of civil and political rights. The
article argues that the integrated approach to interpretation needs firm theoreticalgrounding, and the third part suggests that the prohibition of workers’ exploitation
is an important underlying principle that should guide our understanding of labour
rights as human rights. It develops a definition of workplace exploitation on thebasis of theoretical literature, and suggests some of its implications for the adoptionof the integrated approach to interpretation.

Key words
Human rights, labour rights, integrated approach, European Convention on Human
Rights, exploitation.

Introduction
Some view labour law as a subfield of contract law. On this view, the employment
relationship must be regulated by principles of contract law because the employment
contract is no different to other contracts. Others believe that “labour is not acommodity”.1 Workers and their labour are not like other things that you buy andsell; workers have dignity and rights, so the employment relationship must be
regulated by principles of human rights law, rather than contractual rules. Humanrights law developed exactly in order to protect human dignity, and there is no
reason to think that the protection of dignity and rights should stop at work. In thelast few years, the argument that labour law and human rights are interconnected

UCL, Faculty of Laws. Written as part of the Third Biennial Labour Law Conference of the New
Zealand Labour Law Society (Wellington, 27 November 2015). Many thanks are due to Gordon
Anderson and all participants for comments and suggestions.
1
Declaration concerning the aims and purposes of the International Labour Organisation(Declaration of Philadelphia), adopted 10 May 1944. See analysis in Hugh Collins Employment Law(2nd ed, Oxford University Press, 2010) at ch 1, and see also Paul O’Higgins “Labour Is Not a
Commodity” (1997) 26 Ind Law J 225, particularly at 230.

3

New Zealand Journal of Employment Relations, 41(2): 3-20
has gathered momentum in scholarship and judicial decision-making.2 It has beenargued that human rights law can offer important insights to the critical developmentof labour law.3
In the sections that follow, I first examine the reasons for the resistance to examining
labour rights as human rights. Second, I turn to European human rights
developments in order to assess the case law of the European Court of Human Rights
in this context. The third part suggests that we need a deeper understanding of labour
rights as human rights that is grounded on the prohibition of workers’ exploitation.

Labour Rights as Human Rights
It has been said that human rights “has become the lingua franca of global moral
thought”.4 There is a proliferation of literature that discusses their legal protection,some scholarship that discusses the relationship between their philosophicalfoundations and their legal protection,5 as well as an abundance of governmental
and civil society organisations that aim to protect human rights on the ground. Whenreferring to human rights, a good starting point is the Universal Declaration of
Human Rights (UDHR) adopted by the General Assembly of the United Nations in1948. 6 The Declaration is not a legally binding document, but it is extremely
influential. The Declaration protects rights such as freedom of expression,7 the rightto life8 and the prohibition of torture,9 and also includes labour rights, such as theright to work, the right to free choice of employment, the right to fair remuneration

Some examples include: Keith Ewing and John Hendy “The Dramatic Implications of Demir andBaykara” (2010) 39 Ind Law J 2; Bob Hepple “Introduction” in Bob Hepple (ed) Social and Labour
Rights in a Global Context (Cambridge University Press, 2002) 1 at 16; Colin Fenwick and Tonia
Novitz “Conclusion: Regulating to Protect Workers’ Human Rights” in Colin Fenwick and Tonia
Novitz (eds) Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing, Oxford,2010) 587–588; Virginia Leary “The Paradox of Workers’ Rights as Human Rights” in Lance Compaand Stephen Diamond (eds) Human Rights, Labour Rights and International Trade (University ofPennsylvania Press, 2003) 22; Virginia Mantouvalou “Are Labour Rights Human Rights?” (2012) 3
ELLJ 151; Guy Mundlak “Labor Rights and Human Rights: Why Don’t the Two Tracks Meet?”(2012) 34 Comp Lab L & Pol’y J 237; Lance Compa “Solidarity and Human Rights” (2009) 18 New
Labour Forum 38.
3
Hugh Collins and Virginia Mantouvalou “Human Rights and the Contract of Employment” in Mark
Freedland (ed) The Contract of Employment (Oxford University Press, 2016) at 188.
4
Michael Ignatieff “Human Rights as Idolatry” in Amy Gutmann (ed) Human Rights as Politics andIdolatry (Princeton University Press, 2001) at 53.
5James Nickel Making Sense of Human Rights (2nd ed, Wiley-Blackwell, 2007); George Letsas A
Theory of Interpretation of the European Convention on Human Rights (Oxford University Press,
2007); Allen Buchanan The Heart of Human Rights (Oxford University Press, 2013).
6
GA Res 217A, A/810 (1948).
7
Article 19.
8
Article 3.
9Article 5.
2

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New Zealand Journal of Employment Relations, 41(2): 3-20
ensuring a life with dignity, the right to form and join trade unions,10 as well as theright to rest and leisure including reasonable working hours and holidays with pay.11
The Declaration was criticised by some at the time that it was adopted for including
rights such as holidays with pay alongside other liberal rights. Maurice Cranston
said: “[w]hat the modern communists have done is to appropriate the word ‘rights’
for the principles that they believe in”.12 But Cranston’s critique has been addressed.
David Luban said persuasively that those who criticise art 24 of the UDHR who
probably:13…include academic critics writing during their sabbaticals – have notconsidered seriously what a working life would be for someone whose
day-to-day survival depends on a regular paycheck and who must workat a grinding job fifty-two weeks a year from age fifteen until premature
death at fifty.
As Jack Donnelly underlines in response to Cranston:14…the full right recognized is a right to “rest, leisure, and reasonable
limitation of working hours and periodic holidays with pay”. Denial ofthis right would indeed be a serious affront to human dignity; it was, forexample, one of the most oppressive features of unregulated nineteenth
century capitalism.
However, human rights treaties adopted after the UDHR divided rights into two
categories: civil and political rights (such as freedom of expression and the right tolife) were protected in documents such as the European Convention on Human
Rights (ECHR), while economic and social rights (such as the right to housing, theright to work and the right to decent working conditions) were included in treaties
such as the European Social Charter (ESC). Civil and political rights were protected
through the courts (the European Court of Human Rights (ECtHR) in the case of the
ECHR), and individual petition procedures, while economic and social rights weremonitored by committees (the European Committee of Social Rights in the case of
the ESC) through reporting mechanisms and sometimes collective complaints
procedures.15
The development of labour law in the United Kingdom, Europe and elsewhere wasrelatively resistant to framing workers’ claims as human rights. Courts were often
10Article 23.
Article 24.
12
Maurice Cranston Human Rights To-day (Ampersand Books, London, 1962) at 38–39.
13David Luban “Human Rights Pragmatism and Human Dignity” in Rowen Cruft, S Matthew Liaoand Massimo Renzo (eds) Philosophical Foundations of Human Rights (Oxford University Press,2015) 263 at 276.
14
Jack Donnelly Universal Human Rights (2nd ed, Cornell University Press, New York, 2003) at 28.
15
For an overview, see Virginia Mantouvalou “In Support of Legalisation” in Conor Gearty andVirginia Mantouvalou Debating Social Rights (Hart Publishing, Oxford, 2011).
11

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New Zealand Journal of Employment Relations, 41(2): 3-20
reluctant to protect collective labour rights. For this reason, there was in the 1990s
a trend in academic literature suggesting that human rights norms and adjudication
would not only not help workers, but might even harm their interests.16 There aremany reasons why labour law has been relatively insular, some of which are
grounded in historical circumstances, but most of which are normative, in the sensethat those who developed the arguments had a normative view about how theemployment relationship should be regulated. It is also important to appreciate thatthe resistance to human rights law reflected beliefs from different ends of thepolitical spectrum – both the left and the right.
Private Law for Private Power
Labour law is primarily a discipline that involves private relations; the employer isa private entity most of the time, and the workers are private individuals. For thisreason, it has been suggested that the regulation of the employment relationshiprequires the application of private law rules: contract law and tort law. 17 Typically,
contract law regulates relations between private individuals.
On the most traditional analysis, the purpose of any contractual rule should be toprotect freedom and individual autonomy. On a libertarian account of contractual
freedom applied to the employment relationship, Richard Epstein argued for acontract at will with as little external intervention as possible.18 The definition ofcontract at will used by Epstein is as follows:19…men must be left, without interference to buy and sell where theyplease, and to discharge or retain employees at will for good cause orfor no cause, or even for bad cause without thereby being guilty of an
unlawful act per se. It is a right which an employee may exercise in thesame way, to the same extent, for the same cause or want of cause as theemployer.
For authors like Epstein, legal intervention could disturb contractual freedom ofboth the employer and the worker. For other authors, the contract of employment
can be a legal mechanism that helps rebalance the inequality of bargaining power
between the worker and the employer and correct the distributional implications ofa labour market that may be unjust. Scholars that view the contract of employment
as a central regulatory tool of the employment relationship recognise that it has awelfare role too.20
Keith Ewing “The Human Rights Act and Labour Law” (1998) 27 Ind Law J 275; Tonia Novitz,“Negative Freedom of Association: Gustafsson v Sweden” (1997) 26 Ind Law J 79.
17
Paul Davies and Mark Freedland “The Impact of Public Law on Labour Law, 1972-1997” (1997)
26 Ind Law J 311.
18
Richard Epstein “In Defence of the Contract at Will” (1984) 51 U Chi L Rev 947.
19
Epstein’s definition, quoted in his article, above n 20, at 947–948, is from Payne v Western &Atlantic Railroad Co 81 Tenn 507, 518–519, 1884 WL 469.
20
Hugh Collins Regulating Contracts (Oxford University Press, 1999).
16

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New Zealand Journal of Employment Relations, 41(2): 3-20
With scholarship focussing on the contract of employment as a private law
instrument, human rights were, in the past, either absent or had a relatively marginalrole in the literature, with very few exceptions.21 Human rights were traditionallyviewed as part of public law, which regulates the relationship between the individual
and the state, rather than between private individuals.
Litigation
A second reason why human rights had a limited effect on labour law was that whenhuman rights were invoked, typically litigation and judicial intervention (rather thanother types of civil society activism) came to lawyers’ minds. 22 Legal scholars andactivists used to be skeptical about the effect of litigation in this field. The main
reason for this was that the judiciary has been viewed as conservative in many legal
orders, including the United Kingdom. 23 Values such as freedom of contract,individualism and property rights have been regarded as “traditional judicial
values”,24 so the courts have been presented as a “deeply regressive force in theregulation of employment”.25
The judiciary at a national and supranational level in many legal orders may havebeen reluctant to protect workers’ rights because these have traditionally beenclassified as social rights in human rights law, as explained above.26 The ECtHR
itself was often criticised for not protecting workers’ claims under the ECHR.27
Trade Unions
A third reason why labour law was relatively resistant to human rights law probably
stems from the role of trade unions and the importance attached to union power inthe employment sphere. In the United Kingdom in the 20th century, collective
labour relations were predominantly organised around a system that Kahn-Freund
famously described as collective laissez-faire. 28 In this system, it was collective
actors, namely employers and trade unions, which negotiated and agreed uponworking conditions. For scholars in this tradition, state intervention was desirable
only to the extent that it facilitated collective negotiations. When human rights wereinvoked in this setting, it was mainly in order to stress the importance of workers’

21

See, for instance, Hugh Collins Justice in Dismissal (Oxford University Press, 1992) at ch 6.
See, for instance, Hugh Collins The Law of Contract (Oxford University Press, 1986) at 44.
23
Anne Davies “Judicial Self-Restraint in Labour Law” (2009) 38 Ind Law J 278 at 287.
24
Davies, above n 26, at 278.
25
Alan Bogg “Only Fools and Horses: Some Skeptical Reflections on the Right to Work” in Virginia
Mantouvalou (ed) The Right to Work: Legal and Philosophical Perspectives at 175.
26
See Virginia Mantouvalou “Labour Rights in the European Convention on Human Rights: AnIntellectual Justification for an Integrated Approach to Interpretation” (2013) 13 HRLR 529. The
article includes an overview of the case law.
27
See Keith Ewing, above n 18; Tonia Novitz, above n 18.
28
Otto Kahn-Freund “Legal Framework” in Allan Flanders and Hugh Clegg (eds) The System ofIndustrial Relations in Great Britain (Blackwell, Oxford, 1954).
22

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New Zealand Journal of Employment Relations, 41(2): 3-20
right to organise.29 Apart from that, non-intervention by the state was what both
employers and workers sought.30
In recent years, with the decline of union membership, trade unions and workers in
the United Kingdom and elsewhere seem to have made a strategic decision to turnto human rights as a tool to advance their interests. 31 Human rights litigation
emerged as an avenue to make the claims of workers heard, in a way that more
traditional union activities did not achieve. The strategic decision to turn towards
human rights may have also been triggered by a perception that unions promote theirmembers’ economic interests, rather than all workers’ human rights or the economy
more generally.32 As Kolben put it:33
Framing labor rights as human rights thus shifts the labor discourse from
economics and special interest politics to ethics and morality. In otherwords, activists and labor law scholars seek to harness the hegemonicstatus of human rights discourse in order to gain public support for anumber of legal, political, and strategic objectives.
By putting claims of workers in the language of human rights, these claims appear
morally compelling, as well as universal and inalienable, which are key features ofhuman rights. Human rights are strict entitlements that are resistant to trade-offs, somanagerial interests in business efficiency no longer have primary weight when
there is a conflict with workers’ rights.
The decline in union power is one of the reasons why even some of the staunchest
trade union advocates, like Hendy and Ewing, have turned to human rights law inorder to find a voice for workers and their unions.34 Human rights law that once
appeared irrelevant to trade union struggles slowly emerged as one of the few
opportunities to challenge the employer and be heard.
The international trade union movement has also endorsed the idea that trade union
rights are part of human rights. For instance, the International Trade Union
Confederation (ITUC), which is a coalition of trade unions, places trade union andhuman rights at the core of its activities. This has been described as an indication of

29

See, for instance, Bill Wedderburn The Worker and the Law (3rd ed, Penguin Books,
Harmondsworth) at 276–277.
30
Wedderburn, above n 32, at 16.
31
See, for instance, Ewing and Hendy, above n 2; Lance Compa “Trade Unions and Human Rights”
in Cynthia Soohoo, Catherine Albisa and Martha Davis (eds) Bringing Human Rights Home: A
History of Human Rights in the United States (University of Pennsylvania Press, 2007) at 209.
32
See Judy Fudge “Labour Rights as Human Rights: Turning Slogans into Legal Claims” (2014) 37
Dalhous Law J 601 at 607; Kevin Kolben “Labour Rights as Human Rights?” (2009) 50 VJIL 449
at 461.
33
Kolben, above n 35, at 462.
34
See Ewing and Hendy, above n 2.

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New Zealand Journal of Employment Relations, 41(2): 3-20
a “global shift in labor movements, which are beginning to conceive of themselves
as part of the international human rights movement”.35
Politics
Human rights were also approached with scepticism because labour law, probably
more so than any other area of private law, is viewed as a deeply political subject.
It relates to economic power and to what many view as the struggles of the working
class. Political parties take different approaches to labour law, and often base theirpolitical agenda on reforming labour relations. As it is such a political subject, somecritics view human rights, with their appeal across the political spectrum, as
potentially depoliticising. In addition, some argue that human rights have a
confrontational edge that can erode the solidarity between workers.36 They can bedivisive, because they are individualistic by nature, while the interests of labour arecollective and must be collectively pursued.
Economic Efficiency
A further reason why there has been resistance to human rights in the labour
relationship is that, according to a neoclassical economic analysis, state intervention
in the labour market would hamper its efficient functioning. 37 This is because
employers will incur transaction costs that make them less competitive, both on a
local and global level. An inefficient labour market is undesirable, both for
employers and workers, because it would harm the economic interests of both. As
human rights involve interventions in the market through law, they might render it
inefficient. The issue of legal intervention and economic efficiency is an empiricalpoint, which can be disputed. In any case, there is a different economic frameworkthat is again concerned with economic efficiency but which supports regulation as
being essential to correct “market failures”.38 It is also important to note, however,that it has been argued that labour rights may promote economic efficiency. 39

The Tracks Starting to Meet40
The picture has changed in recent years. Academic scholars have been searching for
a new framework for labour law in the context of economic globalisation, theincrease of non-standard contracts of employment and the decline of union power.41
35

Kolben, above n 35, at 457.
Bogg, above n 28, at 167.
37
See Anne Davies Perspectives on Labour Law (Cambridge University Press, 2004) at 27.
38
At 29.
39
Simon Deakin and Frank Wilkinson “Rights vs Efficiency? The Economic Case for Transnational
Labour Standards” (1994) 23 Ind Law J 289.
40
Leary, above n 2, at 22.
41
There is much scholarship on these issues. See, for instance, Guy Davidov and Brian Langille (eds)
The Idea of Labour Law (Oxford University Press, 2011); Joanne Conaghan, Richard Fischl and Karl
Klare (eds) Labour Law in an Era of Globalization (Oxford University Press, 2002).
36

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New Zealand Journal of Employment Relations, 41(2): 3-20
Against this background, several authors have turned to human rights law as a new
avenue for workers’ voice.42
Integrated Approach
In this context, the ECtHR (and other courts) have started to take what has been
described as an integrated approach to the interpretation of the ECHR, which grants
some protection to social and labour rights through the machinery of civil andpolitical rights documents.43 The ECHR is a traditional civil and political rights
treaty that also contains two labour rights: the prohibition of slavery, servitude,
forced and compulsory labour (art 4) and freedom of association, including the rightto form and join unions (art 11). In the interpretation of these and other Convention
rights, and in contrast to its past stance, the ECtHR has begun to take note ofmaterials of the International Labour Organisation (ILO), the ECSR and other social
rights bodies, which served as a source of inspiration and a way to understand moredeeply the object and purpose of rights guaranteed by the Convention. By adopting
an integrated approach to interpretation, the Court became more receptive toworkers’ claims and appeared to recognise that some labour rights are human rights,
and that the dividing line of civil and political, on the one hand, and economic andsocial rights, on the other, was not as clear as had been assumed in the past.
Some of the landmark cases where the Court demonstrated its openness to workers’
claims raised issues under art 4 of the ECHR. Siliadin v France 44 involved a
Togolese national who was brought to France to work and be educated, but wasinstead kept at home as a domestic worker. She had to clean the house and theemployer’s office, to look after three children; she slept on the floor in their room;
she rarely had a day off; she was almost never paid. When she escaped her
employers, she was faced with the fact that French law did not criminalise theirconduct. The Court had to assess whether her situation could be classified as slavery,
servitude, forced or compulsory labour. In this context, it interpreted art 4 of the
ECHR taking ILO materials into account, and for the first time in its history, it ruledthat the provision had been violated. It found that the applicant was held in servitude,
and that France had an obligation under the Convention to criminalise theemployer’s conduct. Rantsev v Russia and Cyprus45 addressed trafficking for sexual
exploitation for the first time. The Court again took an integrated approach to theinterpretation of the ECHR, and ruled that sex trafficking was prohibited under art
4 of the Convention. In these cases, art 4 was interpreted in light of materials of
specialist bodies, such as the ILO, and a domestic worker and a sex worker won in
Strasbourg.

42

See above n 2.
Mantouvalou, above n 29.
44
Siliadin v France (2006) 43 EHRR 16 (Section II, ECHR).
45
Rantsev v Cyprus and Russia (26965/04) Section I, ECHR 7 January 2010.
43

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New Zealand Journal of Employment Relations, 41(2): 3-20
Sidabras and Dziautas v Lithuania, 46 to give another example, involved theapplicants’ dismissal and ban from access to work in the public and many parts ofthe private sector, because they were former KGB members. The Court recognisedthat dismissal and a ban from access to work created “serious difficulties […] interms of earning [a] living, with obvious repercussions on the enjoyment of […]private lives”.47 It classified the claim as falling within the right to private life underart 8 of the ECHR, and concluded that the employer’s conduct violated art 8, readin conjunction with the prohibition of discrimination in art 14. It is important to notethat the Court here placed special emphasis on right to work rulings of the ECSR. It
underlined that:48[It] attaches particular weight in this respect to the text of Article 1 § 2 of theEuropean Social Charter and the interpretation given by the European
Committee of Social Rights […].

This ECtHR analysis is a good example of the adoption of an integrated approach
to interpretation of the ECHR, which integrates civil and social rights into the scopeof the Convention in the context of the right to work.49
Labour law scholars also celebrated a line of collective labour rights cases. In 2001,
the Court in Wilson and Palmer for the first time in its history ruled that there had
been a breach of art 11 of the Convention in favour of workers.50 Later, Demir andBaykara 51 was viewed as a paradigm of the integrated approach. 52 Here, therespondent Government challenged the use of ILO materials in the interpretation ofart 11 of the ECHR because it had not signed up to them. The Court was firm:53
The Court observes in this connection that in searching for common groundamong the norms of international law it has never distinguished between
sources of law according to whether or not they have been signed or ratified
by the respondent State.

These sources are used in order to find the object and purpose of the Convention
provisions, to which Member States have signed up.54
Following Demir and Baykara, Ewing and Hendy said that in this decision:55
46

Sidabras and Dziautas v Lithuania (2006) 42 EHRR 6 (Section II, ECHR). For analysis of thecase, see Virginia Mantouvalou “Work and Private Life: Sidabras and Dziautas v Lithuania” (2005)
30 ELR 573.
47
At [48].
48
At [47].
49
Mantouvalou, above n 29.
50
Wilson and Palmer v United Kingdom (2002) 35 EHRR 20 (Section II, ECHR). See Keith Ewing“The Implications of Wilson and Palmer” (2003) 32 Ind Law J 1.
51
Demir and Baykara v Turkey (2009) 48 EHRR 54 (Grand Chamber, ECHR).
52
Ewing and Hendy, above n 2.
53
At [78].
54
At [76].
55
Ewing, and Hendy, above n 2, at 47–48.

11New Zealand Journal of Employment Relations, 41(2): 3-20

…human rights have established their superiority over economic irrationalismand ‘competitiveness’ in the battle for the soul of labour law, and in which
public law has triumphed over private law and public lawyers over private
lawyers.

The adoption of the integrated approach meant that the separation between civil andsocial rights had started to become blurred, which could have important positive
implications for the protection of workers’ rights.
Uncertainty
The protection of workers’ rights through the ECHR has not been entirely consistent.
The enthusiasm inspired particularly by Demir and Baykara may have beenpremature; in more recent case law, the Court seems to have returned to its previous
reluctant stance. In Palomo Sanchez v Spain, 56 for example, delivery workers
employed by an industrial bakery company brought proceedings against thecompany claiming that they should be recognised as employees rather than selfemployed or non-salaried workers. They set up a trade union to promote theirinterests. In the context of their dispute, the trade union newsletter published acartoon that depicted the human resources manager of the company receiving sexual
gratification for favours he had done for some workers. The newsletter also
contained other critical passages. The workers were subsequently summarily
dismissed. In Strasbourg, the applicants claimed that their dismissal violated theirfreedom of expression protected in art 10 of the ECHR, which should in this casebe read in light of their right to freedom of association in art 11. The claim was that
free speech rights should be contextualised and given special protection in the tradeunion context. The majority of the ECtHR ruled that the dismissal did not violate
the Convention.
However, a powerful dissent argued that the majority did not sufficiently appreciate
the particularities of the trade union context. In order to do so, the dissenting judges
said that the majority should have paid more attention to the context, which it could
have achieved to a certain degree if it had adopted an integrated approach:57…trade-union freedom of expression is unanimously regarded as an essential
and indispensable aspect of the right of association, it being a prerequisite to
the fulfillment of the goals of associations and trade unions, as is quite clear
from the documents of the International Labour Organization and the case-lawof the Inter-American Court of Human Rights cited by the Grand Chamber as
relevant material.

56

Palomo Sanchez and Others v Spain (28955/06, 28957/06, 28959/06) Grand Chamber, ECHR 12
September 2011.
57
At [5] (dissent).

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New Zealand Journal of Employment Relations, 41(2): 3-20
The dissent in Palomo Sanchez indicates that the ECtHR may have an insufficient
grasp of the effect of restrictions on free speech for a trade union in the context of alabour dispute. It may also indicate a broader lack of understanding of the special
function and role of human rights against employer interference.
More recently, a case on the right to strike further illustrated challenges in thedeveloping case law on workers’ rights as human rights, despite the fact that theapplicants argued very strongly for the adoption of an integrated approach to theinterpretation of the ECHR. In RMT v United Kingdom,58 the Court addressed theissue of secondary action, which is banned in English law. The applicant union oftransport workers suggested that the ban violated their rights under art 11 of theConvention. The applicants were all members of the union RMT. They were initiallyemployed by a company called Jarvis, and were then transferred to a smaller
company, Hydrex. Their terms and conditions were at first kept as they were,according to a legal requirement, but deteriorated later on. Industrial action by
Hydrex employees only would not be effective, so RMT sought to organise
industrial action at the bigger company, Jarvis. As English law does not protect
secondary action, it was not possible to do this. The Court accepted that secondary
action falls within the scope of art 11.
The trade union relied heavily on ILO and ECSR materials, which were critical of
United Kingdom law with regards to secondary actions. When examining materials
of expert bodies in interpreting the ECHR, the Court often seeks to establish whether
there is an emerging international or European consensus on the topic in question.59
In RMT, the applicants invoked numerous international and regional materials insupport of their claim,60 and the Court said that these might indeed be relevant, butwere not decisive because the nature of review in Strasbourg is different to thesupervision by the ILO and the ECSR:61…the Court considers that the negative assessments made by the relevant
monitoring bodies of the ILO and European Social Charter are not of such
persuasive weight for determining whether the operation of the statutory ban
on secondary strikes in circumstances such as those complained of in thepresent case remained within the range of permissible options open to thenational authorities under Article 11 of the Convention.

Although it seems that the Court seeks to find consensus by looking at a range ofmaterials,62 it is both questionable what weight it should give to such consensus

58

RMT v United Kingdom (31045/10) Section IV, ECHR 8 April 2014. See Alan Bogg and Keith
Ewing “The Implications of the RMT Case” (2014) 43 Ind Law J 221.
59
Demir and Baykara, above n 57, at [85].
60
RMT, above n 67, at [57].
61
At [98].
62
See Demir and Baykara, above n 57.

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New Zealand Journal of Employment Relations, 41(2): 3-20
generally,63 and unclear how it should use any established consensus. Here, turning
to the permitted limitations to the right, it found that the restriction of sympathy
action was legitimate. The limitation pursued the aim of protecting the rights of
those who are not parties to the dispute, and was proportionate to the aim pursued.
This is because, in sensitive matters of labour and social policy, such as a secondary
strike, the Court will allow a wide margin of appreciation.64 In this case, it preferred
to recognise discretion to state authorities, rather than challenge English law on
industrial action.
The Court’s uncertainty regarding the guiding principles for applying theConvention to issues involving workers’ rights also emerged in a case on prison
work, Stummer v Austria.65 Mr Stummer spent approximately 28 years in prison.
During this time, he worked for long periods in the prison kitchen or the prisonbakery without being affiliated to the old age pension system. When he applied foran early retirement pension, his application was rejected because he had notaccumulated the required amount of insurance months. The reason why nocontributions were made for Mr Stummer during the full period of his employment
was that the prison authorities kept 75 per cent of his pay, so his salary did not
suffice for pension contributions. It should be added that work is compulsory inprison: refusal to work while in prison carries penalties, such as withdrawal ofcertain rights, and may even amount to solitary confinement.
The applicant claimed that prison work without affiliation to an old age pension
system should not be viewed as ordinary in the course of detention, so it violated art
4, as well as art 1 of Protocol 1 (property) together with art 14 (discrimination). The
majority of the Court rejected Stummer’s claims. However, a strong dissenting
opinion suggested that his treatment was a violation of the Convention. The
distinction between prisoners and other workers “produces a long-term effect goingwell beyond the legitimate requirements of serving a particular prison term”,66 andviolates the prohibition of discrimination in conjunction with the right to property.
In a further dissenting opinion, moreover, Judge Tulkens argued that “work without
adequate social cover can no longer be regarded as normal work”,67 and suggested
that in this instance there was also a violation of the prohibition of slavery, servitude,
forced and compulsory labour.
Recent case law on the protection of workers’ rights under the ECHR suggests that,even though the tracks of human rights and labour law have started to meet, there is
still uncertainty as to the application of human rights in the employment context.
The ECtHR has sometimes been willing to seek inspiration in materials of expert
George Letsas “The ECHR as a Living Instrument: Its Meaning and its Legitimacy” in Andreas
Ulfstein, Geir Follesdal and Birgit Peters (eds) Constituting Europe – The European Court of Human
Rights in a National, European and Global Context (Cambridge University Press, 2013) 106.
64
On the margin of appreciation, see Dean Spielmann “Whither the Margin of Appreciation?” (2014)
67 CLP 49; and George Letsas “Two Concepts of the Margin of Appreciation” (2006) 26 OJLS 705.
65
Stummer v Austria (37452/02) Grand Chamber, ECHR 7 July 2011.
66
At [11] (dissent).
67
At [8] (Judge Tulkens’ partly dissenting opinion).
63

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New Zealand Journal of Employment Relations, 41(2): 3-20
bodies, such as the ILO and the ECSR, but in other instances it has decided to leave
workers’ rights unprotected, even in the face of strong evidence that bodies withexpertise had taken a different approach to the problem in question.

Exploitation
The inconsistencies in the ECtHR case law should probably not come as a surprise.
After all, the Court has only recently started to engage with workers’ rights (since
the early 2000s). At the same time, in recent years, it has faced persistent politicalpressure by the United Kingdom Government, which has threatened to withdraw
from the Convention because it views the Strasbourg Court as having gone too far
in protecting human rights.68
How should the Court be approaching workers’ rights in the ECHR? In order toaddress this question and the current uncertainty, I will examine a possible
justification for workers’ rights as human rights on the basis of an idea that isunderexplored in labour law and human rights literature: exploitation.
The prohibition of exploitation is not of course explicitly included in the Convention
or in other human rights documents. Human rights law does not contain a right not
to be exploited as such, however the concept of exploitation has figured in case law
and has been linked to slavery and human trafficking. The ECtHR refers to
exploitation when examining art 4 in the Siliadin case, discussed earlier, andexploitation was further mentioned in CN v United Kingdom. 69 In CN, which
involved a migrant domestic worker in the United Kingdom, the Government argued
that English law contained effective legislation on trafficking, and claimed that, forthe purposes of s 4 of the Asylum and Immigration (Treatment of Claimants) Act,“exploitation meant behaviour that contravened article 4”. 70 The Equality and
Human Rights Commission, intervening as a third party in the case, pointed to the
low number of prosecutions under the Act, despite the fact that a far larger numberof individuals had been recognised as victims of trafficking. It stated that there wasa need for clarity in English law as to “what amounted to forced labour as distinct
from exploitation”.71 The ECtHR said in turn:72…domestic servitude is a specific offence, distinct from trafficking andexploitation, which involves a complex set of dynamics, involving both overt
and more subtle forms of coercion, to force compliance. A thoroughinvestigation into complaints of such conduct therefore requires an
See Anushka Asthana and Rowena Mason “UK Must Leave European Convention on Human
Rights, Says Theresa May” (25 April 2016) The Guardian <www.theguardian.com>. See also HighLevel Conference on the Future of the European Court of Human Rights (the Brighton Declaration),
adopted 19–20 April 2012, referring to the margin of appreciation.
69
CN v United Kingdom (2013) 56 EHRR 24 (Section IV, ECHR).
70
At [57].
71
At [63].
72
At [80].
68

15New Zealand Journal of Employment Relations, 41(2): 3-20
understanding of the many subtle ways an individual can fall under the control
of another.

When examining art 4, the United Kingdom Supreme Court has also said that“[f]orced labour is not fully defined and may take various forms, but exploitation isat its heart”.73
The Court generally interprets art 4 by taking account of international and European
law on human trafficking, where labour exploitation is described as follows:74
Exploitation shall include, as a minimum, the exploitation of the prostitutionof others or other forms of sexual exploitation, forced labour or services,
including begging, slavery or practices similar to slavery, servitude, or the
exploitation of criminal activities, or the removal of organs.

Even though the above are simply examples of exploitation and not a definition of
the concept, it is clear that art 4 case law refers to exploitation as a moral wrong,which the Convention can address. The term is used when a worker is found in asituation akin to slavery, which violates art 4. The elements upon which the ECtHR
relies to determine whether there is such severe exploitation include: no pay forwork performed, isolation, confiscation of legal documents, deception, andbackground conditions of poverty. The combination of these individual andstructural factors may lead to a finding that the worker is faced with serious coercion
and hence is in a situation of slavery or servitude.
The classification of some instances of abuse of workers’ rights as exploitative andhence in breach of art 4 is a welcome development, for it demonstrates therecognition and protection of workers’ dignity in human rights law. Yet it is too
narrow. Is it correct to only protect workers from exploitation when they are facedwith the most extreme forms of it?
Modern accounts of political theory attempt to explain what is wrong with
exploitation. 75 These accounts may help to shed light on our understanding of
exploitation in law. The starting point is usually that exploitation occurs whensomeone takes unfair advantage of someone else.76 Exploitation of a person occurs
when someone takes advantage of that person’s vulnerability.77 Someone may take
73

Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions [2013] UKSC
68, [2013] 3 WLR 1276 at [81].
74
Article 2, paragraph 3.
75
Andrew Reeve (ed) Modern Theories of Exploitation (Sage Publications, London, 1987); Robert
Goodin Reasons for Welfare (Princeton University Press, 1988); Alan Wertheimer Exploitation(Princeton University Press, 1999); Ruth Sample Exploitation: What It Is and Why It’s Wrong(Rowman & Littlefield Publishers, Lanham (MD), 2003).
76
Wertheimer, above n 87, at 10; Robert Goodin “Exploiting a Situation and Exploiting a Person”
in Andrew Reeve (ed) Modern Theories of Exploitation (Sage Publications, London, 1987) at 171;
Matt Zwolinski “Structural Exploitation” (2012) 29 Soc Philos Policy 154 at 156.
77
Allen Wood “Exploitation” in Kory Schaff (ed) Philosophy and the Problems of Work: A Reader(Rowman & Littlefield Publishers, Maryland, 2001) 141 at 147.

16

New Zealand Journal of Employment Relations, 41(2): 3-20
advantage of another’s various kinds of vulnerability, their needs or desires, but thiswill not always be classified as wrongful exploitation in the sense discussed here.
However, when someone’s vulnerability is due to a significantly weaker bargaining
position than the other, and the stronger party uses this vulnerability, then a situationof exploitation is present. 78 It has been argued that “those who depend upon
particular others for the satisfaction of their basic needs are rendered, by that
dependency, susceptible to exploitation by those upon whom they depend”.79
For exploitation to be objectionable, on Goodin’s influential view, a person in “anespecially strong position vis-à-vis another” must take advantage of the other’svulnerability. 80 Goodin argues that such extreme vulnerability may consist ofasymmetry of power between the parties, the possession by the powerful of what
the weaker party needs, a monopoly of the powerful over what the other needs, andcontrol of this object by the powerful. Even though this account contains important
insights, such as the role of need and asymmetry of power, it is narrow, particularly
because it requires a monopoly of the powerful. As Sample puts it, this account is“not merely taking advantage, but kicking a person when he is down”.81
What emerges is that, in modern political thought, exploitation is analysed as awrong, and significant attention has been paid to what may constitute exploitation,
namely taking unfair advantage of vulnerability. Vulnerability may consist of
someone’s need. Most people work because with the income gained through work
they can satisfy their basic needs: without this income, most people would bedestitute. 82 For this reason, workers are always in a position of need and are
therefore prone to exploitation. At the same time, workers are in a weak bargaining
position in relation to their employers. They need their job, and they depend upon
their employer because there is a scarcity of jobs. Employers may impose working
conditions that are exploitative exactly because they know there is job scarcity andthey are likely to be able to replace workers without much difficulty. It is clear, inother words, that workers are vulnerable to exploitation. Migrant workers inparticular may be especially prone to exploitation, because their immigration status
may depend on being employed more generally, or even on being employed by aparticular employer.83
At the same time, for exploitation to occur, there does not need to be a situation akinto slavery. There are other forms of exploitation that involve violations of workers’
rights. For instance, there are many situations where employers underpay or do not
pay their employees if they are undocumented workers. In these instances, the78

Wood, above n 89, at 148.
Goodin, above n 87, at 121.
80
Goodin, above n 87, at 125.
81
Sample, above n 87, at 31.
82
People, of course, work for other important reasons too. See Hugh Collins “Is There a Human
Right to Work?” in Virginia Mantouvalou (ed) The Right to Work: Legal and Philosophical
Perspectives (Hart Publishing, Oxford, 2015) 17.
83
See Virginia Mantouvalou “‘Am I Free Now?’ Overseas Domestic Workers in Slavery” (2015) 42
J Law & Soc 329.
79

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New Zealand Journal of Employment Relations, 41(2): 3-20
employers are often aware that the workers are particularly vulnerable because if
they go to the authorities they are likely to be arrested and deported. Employers takeadvantage of this vulnerability by underpaying them or not paying them at all, andsometimes the law in certain jurisdictions, such as the United Kingdom, does notprotect workers from such exploitation. Workers do not have a right to be paid forwork performed under an illegal contract.84 The ECHR does not contain a right to aminimum wage, but it can fairly be argued that situations such as this violate theright to property, which is protected in art 1 of Protocol 1 of the Convention,
possibly together with the prohibition of discrimination. 85 The prohibition of
exploitation can serve as a guiding principle in the interpretation of the ECHR on
issues such as this.
As discussed earlier, the Convention is a traditional civil and political rights
document, which only contains few labour rights. However, this does not mean that
the ECtHR cannot interpret the existing provisions in ways that protect workers
from exploitation. The prohibition of exploitation can ground rights, such as aminimum wage, as well as trade union rights that strengthen the vulnerable positionof workers. The adoption of an integrated approach, as described above, provides
the Court with certain tools that enable it to interpret the Convention in a way thatprohibits exploitation. To return to the case law, Stummer, the prison worker, wasexploited by the prison authorities because they took advantage of his vulnerability:
as a prisoner, he was not free to not work or to work for a different employer. There
are many instances of exploitation of prison workers,86 and it is unfortunate that the
majority of the Court did not take the opportunity to acknowledge exploitation inthis case. The dissenting judges, on the other hand, rightly stated that his treatment
constituted a violation of the Convention.
In collective labour law cases, the idea of exploitation as a guiding principle of the
Court’s case law suggests that there is very little scope for a margin of appreciation
to national authorities when the state or employers interfere with freedom of
association. Workers’ organisations have the counteraction of the inequality of
bargaining power between employers and workers as their main purpose. In thisway they help to address workers’ vulnerability to exploitation. For this reason,
workers’ collective labour rights must be given strong protection against employers.
In Palomo Sanchez, the background dispute about whether the workers were selfemployed indicates that the workers may have been exploited. That the Court was
unwilling to give their right to free speech strong protection in the context of thisdispute did not help to address their vulnerability in bargaining with their employer.
84

Hounga v Allen & Anor [2014] UKSC 47, [2014] 1 WLR 2889; Alan Bogg and Sarah Green“Rights Are Not Just for the Virtuous: What Hounga Means for the Illegality Defence in the
Discrimination Torts” (2015) 44 ILJ 101; Virginia Mantouvalou “The Right to Non-Exploitative
Work” in Virginia Mantouvalou (ed) The Right to Work: Legal and Philosophical Perspectives (Hart
Publishing, Oxford, 2015) 39.
85
Mantouvalou, above n 84.
86
Richard Lippke “Prison Labour: Its Control, Facilitation, and Terms” (1998) 17 Law Philos 533;
Howard League for Penal Reform Business Behind Bars: Making Real Work in Prison Work (2012)<www.howardleague.org>.

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New Zealand Journal of Employment Relations, 41(2): 3-20
As famously stated in Handyside, the Convention protects views that shock or
disturb the State or a part of the population,87 and this protection should extend to
the trade union context. Similarly, the unwillingness of the ECtHR to protect
sympathy industrial action in RMT did little to counteract the inequality of powerthat leads to vulnerability and exploitation, despite strong indications in ILO andECSR materials of the importance of such action in the labour context.

Conclusion
Human rights law plays an increasingly important role in the employment
relationship context. An examination of the ECtHR and its case law shows that there
is some willingness to protect workers’ rights through an integrated approach tointerpreting the Convention. The Strasbourg Court often takes note of materials of
the ILO and the ECSR in order to interpret the ECHR, which has been celebrated inlabour law scholarship.88 Yet the ECtHR is a supranational body and is sometimes
faced with hostility by national authorities. Workers’ rights, and other social rights,
were until recently viewed as non-justiciable through individual petitions before
human rights bodies. The employment relationship was also typically viewed as anarea that must be regulated through contract and other private law rules, rather than
through public law. For reasons such as these, there is much uncertainty as to the
future direction of the protection of workers’ rights as human rights.
This article suggests that the ECtHR has opened the door to the protection ofworkers’ rights both by taking note of findings of the ILO and other expert bodies,and by protecting certain applicants from forms of exploitation that are akin toslavery and servitude. Yet the approach of the Court, thus far, appears to be both
uncertain and narrow. This paper, therefore, argues for the recognition of a different
account of exploitation, which consists of taking account of someone’s vulnerability.
Human rights law can, in turn, address exploitation by safeguarding workers’ rights,
such as a minimum wage, and by strengthening workers’ bargaining power throughprotection of collective labour rights. The prohibition of exploitation can serve as a
guiding principle in Strasbourg case law, as well as the case law of other bodies that
explore the legal protection of workers’ rights as human rights.
Human rights can provide an important critical perspective for labour law, as wellas an important tool for the protection of workers’ rights. “The importance of humanrights […]”, as Joseph Raz puts it in a recent essay: 89

87

Handyside v United Kingdom (1976) 1 EHRR 737 (ECHR) at [49].
Mantouvalou, above n 26; Ewing and Hendy, above n 2.
89
Joseph Raz “Human Rights in the Emerging World Order” in Rowan Cruft, S Matthew Liao,
Massimo Renzo (eds) Philosophical Foundations of Human Rights (Oxford University Press, 2015)
217 at 226.
88

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New Zealand Journal of Employment Relations, 41(2): 3-20
…is in affirming the worth of all human beings, and in distributing power awayfrom the powerful to everyone, including any group or association willing to
advocate and promote the interests of ordinary people.

One way in which human rights can achieve this rebalancing of power is throughthe protection of workers from exploitation. The prohibition of exploitation is one,but not the sole, justification for conceptualising workers’ rights as human rights.90
However, a modern understanding of the prohibition of exploitation in theworkplace can be an important guiding principle in achieving dignity of workers
against employer abuse.

I have previously examined the theory of capabilities as a foundation of workers’ rights. See
Mantouvalou, above n 26.
90

20

New Zealand Journal of Employment Relations, 41(2): 21-35

Employee-Citizens of the Human Rights StateDR JONATHAN BARRETT
Abstract
This paper considers the position of rights-bearing citizens as employees. It is argued that therights and responsibilities of citizenship should be fully exercisable within employer
organisations. Contractual terms which restrict an employee’s rights should be deemed void.
Furthermore, employees should have a basic right to refuse to perform any action thatnegatively affects their own or their fellow citizens’ rights. In this way, full humanflourishing will be furthered in the workplace, and corporations, in particular, will be mademore accountable to the societies which enable them to exist and prosper.

Key words
Human Rights State, Human Rights, Labour Law, Citizenship, New Zealand Bill of Rights
Act 1990, Human Rights Act 1993.

Introduction
In New Zealand, we are fortunate to live in a country where human rights are, in the main,taken seriously.1 As citizens, we can enforce a panoply of civil, political, social, economic,
and cultural claims against the state and those invested with public powers. Certain civil andpolitical rights are considered sufficiently significant to be affirmed in the New Zealand Billof Rights Act 1990 (NZBORA). Because the judiciary is subject to NZBORA, it is plausiblethat the common law may be developed in accordance with human rights, thereby giving
NZBORA the potential for horizontal effect.2 Furthermore, the Human Rights Commission ischarged with promoting all human rights,3 not only the vertical rights expressly affirmed in
NZBORA. Despite this legislative and institutional respect for human rights,4 New
Zealanders can be lax in upholding our rights in the face of corporate and organisational
power.5 In particular, we may find it unexceptional that a citizen’s basic rights to respect for Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington. Written as
part of the Third Biennial Labour Law Conference of the New Zealand Labour Law Society (Wellington, 27
November 2015).
1
See, for example, Geoffrey Palmer “The Bill of Rights after Twenty-One Years: The New ZealandConstitutional Caravan Moves On?” (2013) 11(1) NZJPIL 257.
2
See Lord Cooke “A Sketch from the Blue Train – Non-Discrimination and Freedom of Expression: The New
Zealand Contribution” (1994) NZLJ 10 at 11. Unlike vertical human rights, which can only be enforced by acitizen against the state, horizontal human rights can be enforced by one citizen against another citizen.
3
Human Rights Act 1993, s 5.
4
The lack of an entrenched, supreme law may, of course, lead to rights being subordinated to populist measures.
The most egregious example of this phenomenon is the disqualification of prisoners from voting: see Electoral
Act 1993, s 80(1)(d); Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791. Generally, however,the presence or absence of an entrenched, supreme law does not in itself indicate whether a country takes humanrights seriously; rather the culture of respect for human rights is determinative.
5
For convenience sake, in this paper, employers are collectively denoted corporations. Rights should apply
whatever the nature and size of the employer. Thus the International Labour Organization (“ILO”) says: “Allfundamental rights in the labour field apply both to public employment or para-statal enterprises and to private

21their dignity, freedom of expression and privacy might be curtailed by an employment
agreement. Corporate culture and reporting processes may also prevent employees fromhonouring their civic obligations to other citizens, such as warning their fellow citizens ofcorporate malfeasance.6 This paper argues against such a dilution of the rights andresponsibilities of employee-citizens.7
This paper is at a developmental stage needing, on the one hand, significant fleshing out oflegal details, and, on the other hand, the benefit of Occam’s razor. A wide range of issues arebroached in this paper, and, necessarily, these issues are considered at a level of basic
principle; deeper and more specific analysis is intended in the future. This paper is structured
as follows: the basic informing ideas are initially outlined. These are, first, the modern
Rechsstaat (Human Rights State) is the moral and political community which guarantees
rights and within which citizens claim rights and exercise responsibilities; and, second, fullinclusion in the Human Rights State constitutes citizenship. It is then argued that the rights
and responsibilities of citizenship should be fully exercisable within corporations. A
fundamental right of refusal to comply with employer instructions unless they areconscionable8 will, in particular, further this goal. This paper concludes that full exercise ofrights and responsibilities by employees will contribute to their flourishing as human beings.
Furthermore, corporations will become more accountable to the moral and politicalcommunities in which they operate.9

Basic Ideas
This part of the paper outlines the basic ideas which inform the subsequent arguments. The
objective here is to present a sketch of the Human Rights State, and to establish citizenship as
full inclusion within that moral and political community.
The Human Rights StateThe common law rule of law and the civilian Rechsstaat are closely cognate concepts.10
When the liberal democratic state was developing, focus for both English and Continental

enterprise of any size, cooperatives, self-employed, own-account workers, and so on.” As cited by WR Böhning
Labour Rights in Crisis: Measuring the Achievement of Human Rights in the World of Work (Palgrave
Macmillan, Basingstoke, 2005) at 19.
6
See the section of this paper titled “Whistle-blowing” on the Protected Disclosures Act 2000.
7
The term “employee” is used loosely here and should be read to include nonstandard workers, those being“[a]gency temporaries, independent contractors, on-call workers, contract company workers, part-timers” and soforth: see Anne Polivka, Sharon Cohany and Steven Hipple “Definition, Composition, and Economic
Consequences of the Nonstandard Workforce” in Françoise Carré, Marianne Ferber, Lonnie Golden andStephen Herzenberg (eds) Nonstandard Work: The Nature and Challenges of Changing Employment
Arrangements (Industrial Relations Research Association, Champaign (IL), 2000) 41 at 41.
8
According to the Oxford English Dictionary <www.oed.co.uk>, “conscionable” means “habitually governedby a sense of what is right” and “scrupulous”. See the section of this paper titled “Responsibilities” for a
discussion of virtuous employee behaviour which includes scrupulousness.
9
For a discussion of different conceptions of accountability, see Mark Bovens “Analysing and Assessing
Accountability: A Conceptual Framework” (2007) 13(4) ELJ 447 at 447-468.
10
See Niklas Luhmann Das Recht der Gesellschaft (Suhrkamp Verlag, Frankfurt am Main, 1993) (translated ed:
Klaus A Ziegert (translator) Niklas Luhmann Law as a Social System (Oxford University Press, Oxford, 2004))
at 362-363.

22

constitutional theory lay with the processes of the law, rather than its substantive content.11
Thus, for Alfred Venn Dicey, “the rule of law” meant that government should not possess
arbitrary or discretionary power; the ordinary law of the land, administered by the regulartribunals, should apply to everyone; and “the general principles of law, the common law rulesof the constitution ... are the consequences of rights of the subject, not their source”.12
Following the Universal Declaration of Human Rights (UDHR),13 which was crafted
principally in response to the atrocities committed during the Nazi era14:15…the liberal rechtsstaat with its emphasis on the technical nature of laws wascomplemented by a deep concern as to the nature of such laws … The rechtsstaat,
declaring the supremacy of law, not only had to ensure that laws were properly passed,
but also that they respected certain minimum notions of justice.

While noting it “is not a principle which would be universally accepted as embraced within
the rule of law”, Tom Bingham, in his interpretation of the common law conception of therule of law today, argues “[t]he law must afford adequate protection of fundamental humanrights”.16 Likewise, for Gerhard van der Schyff, the contemporary Rechtsstaat has:17…developed a new social dimension, not only does the focus of law rest on theorganisation of the state and the accompanying political rights, but also on the quality oflife within that state.

Thus, akin to the jurisprudence developed by Germany’s Federal Constitutional Court(Bundesverfassungsgericht),18 the South African Constitutional Court has characterised the
Rechtsstaat as a state:19…where government is required to establish a lawfully regulated regime outside of itself
in which people can go about their business, develop their personalities and pursue
individual and collective destinies with a reasonable degree of confidence and security.

The South African Bill of Rights explicitly guarantees economic, social and cultural rights,
along with civil and political rights,20 but New Zealand, despite lacking such constitutional
guarantees, has nevertheless committed itself to the fundamental United Nations rights
See Paul Craig “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” (1997)
PL 467 at 473-474. Compare with the Fuller-Hart debate on the moral content of law: see generally HLA Hart
The Concept of Law (Oxford University Press, Oxford, 1961) and Lon Fuller The Morality of Law (Rev ed, Yale
University Press, New Haven, 1969).
12
See Roger Michener “Foreword” in AV Dicey Introduction to the Study of the Law of the Constitution (8th ed,
Macmillan, London, 1915) xi at xx.
13
Universal Declaration of Human Rights GA Res 217A, A/810 (1948) at 71.
14“Without the Holocaust, then, no Declaration” says Michael Ignatieff “Human Rights as Idolatry” in Amy
Gutmann (ed) Human Rights as Politics and Idolatry (Princeton University Press, Princeton (NJ), 2001) 53 at
81. In Roger Burggraeve’s view, the motivation for declarations of rights arises from “indignation over the evilthat is inflicted on vulnerable others”: see Roger Burggraeve “The Good and Its Shadow: The View of Levinas
on Human Rights as the Surpassing of Political Rationality” (2005) 6(2) Hum Right Rev 80 at 97.
15
G van der Schyff “The Protection of Fundamental Rights in the Netherlands and South Africa Compared: Can
the Many Differences be Justified?” (2008) 11(2) PER 17 at 18.
16
Tom Bingham The Rule of Law (Penguin Books, London, 2011) at 66. Lord Bingham made a major
contribution to the jurisprudence of the rule of law.
17
Van der Schyff, above n 15, at 27.
18
See Francois Venter “South Africa: A Diceyan Rechtsstaat?” (2012) 57(4) McGill LJ 721-747.
19
Ferreira v Levin NO 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) per Sachs J at [250].
20Constitution of the Republic of South Africa 1996, ch 2.
1123

declarations and covenants.21 In accordance with the Vienna Declaration, respect for all
human rights must be an essential element of the rule of law.22 Indeed, the contemporary
Rechtsstaat or State under the rule of law may be denoted the ‘Human Rights State’, and will
be referred to as such in this paper.
Citizenship as Full Inclusion in the Human Rights State
Thomas Marshall proposed a triadic conception of citizenship,23 comprising of a civil
element (rights necessary for individual liberty), a political element (electoral rights) and asocial element (ranging from a right to basic welfare to living “the life of a civilised being
according to the standards prevailing in society”).24 Citizenship in this sense contemplates aperson being fully included within and, to the extent they are able,25 participating in a
discursive democracy.26 At a fundamental level, this conception of citizenship is about
membership of a community of citizens in which needs are met, capacities are realised, and,above all, equal human dignity is respected.27 Unlike the Human Rights State, which may be
a temporally and culturally-specific arrangement, it is submitted that membership of such a
community as described is a universal expectation. This reservation noted, democracy does
not guarantee respect for human dignity but it is currently implausible that one might haverespect for dignity without democracy. The expectations of respect for dignity and a voice inthe matters that affect us apply in the workplace as well as in our general lives.28

21

Notably, the UDHR; the International Covenant on Economic, Social and Cultural Rights 993 UNTS 3(opened for signature 16 December 1966, entered into force 3 January 1976) at 49; and the International
Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into
force 23 March 1976). The bifurcation of UDHR rights into the different covenants is, it is submitted, a matterof practicableness, not principle.
22
See Vienna Declaration and Programme of Action GA Res 48/121, A/CONF.157/23 (Vienna Declaration), as
adopted by the World Conference on Human Rights on 25 June 1993, at [5].
23
As a sociologist, Marshall presumably sought to describe a particular form of citizenship which wasobservable in Western countries in the forty year period after the Second World War. However, following
Jeremy Waldron, Virginia Mantouvalou observes that the Marshallian model has taken on a normative quality:
see Virginia Mantouvalou “Workers without Rights as Citizens at the Margins” (2013) CRISPP 366 at 368.
24
TH Marshall “Sociology at the Crossroads” in The Right to Welfare and Other Essays (Heinemann Education
Books, London, 1981) 74 at 74.
25
See, generally, Bryan Turner Vulnerability and Human Rights (Pennsylvania State University Press,
Philadelphia, 2006); Martha Nussbaum Frontiers of Justice: Disability, Nationality, Species Membership (The
Belknap Press of Harvard University Press, Cambridge, 2006).
26
See John Stephens “Social Rights of Citizenship” in Francis Castles et al (eds) The Oxford Handbook of the
Welfare State (Oxford University Press, Oxford, 2012) 511 at 513. On discursive democracy, see generally
Jürgen Habermas Faktizität und Geltung. Beiträge zur Diskurstheorie und demokratischen Rechtsstaats(Suhrkamp Verlag, Frankfurt-am-Main, 1992) (translated ed: William Rehg (translator) Jürgen Habermas
Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Polity Press, London,
1997)). Critics argue that the Habermasian model of discursive democracy is, on the one hand, an unattainableideal – indeed, an undesirable ideal – and, on the other hand, a culturally-specific project, gravid with colonial
intent. Thus Chantal Mouffe says Habermas seeks “to establish the privileged rational nature of liberal
democracy and consequently its universal validity”: see Chantal Mouffe On the Political (Routledge, London,2005) at 84.
27
On developing human capacities, see, for example, Martha Nussbaum Creating Capacities: The Human
Development Approach (The Belknap Press of Harvard University Press, Cambridge, 2011).
28
See Cynthia Estlund “Working Together: The Workplace, Civil Society, and the Law” (2000) 89 Geo LJ 1.

24

Labour Rights as Human Rights
Labour rights are intrinsic to citizenship. For Virginia Mantouvalou, “citizenship requires
respect for labour rights, as much as it requires respect for other human rights”. 29 The
inference to be drawn is that labour rights are tantamount to human rights, but are they?30
Certain traditional labour rights, such as freedom of association, have been included inhuman rights conventions and charters, but may be instruments, rather than ends inthemselves. History has taught us that without the ability to combine, workers’ dignity isimperilled. And, as Aharon Barak tells us, dignity “is the source from which all other humanrights are derived. Dignity unites the other human rights into a whole.”31
Mantouvalou observes, “certain labour rights are compelling, stringent, universal andtimeless entitlements, as much as rights such as the prohibition of torture or the right toprivacy.”32 This argument is most plausible when labour rights directly relate to, or further
respect for, human dignity. However, some rights are instrumental or procedural, albeit
necessary for maintaining dignity.33 One might then prioritise rights. Thus Roger Böhning
notes:34
The discussions surrounding globalization in the 1990s led to a distinction between
labour rights that are fundamental [freedom of association; elimination of all forms ofcompulsory labour; effective abolition of child labour; and elimination of discriminationin respect of employment and occupation] and others that have lower status.

It may be tactically prudent for the International Labour Organisation (ILO) to focus on theseso-called core rights. Indeed, relative to, say, child labour, workplace concerns in developed
countries, such as privacy of communications, may appear to be petty “First World
problems”. But both child labour and denial of privacy impinge upon human dignity andshould be opposed; otherwise the risk is run of the neoliberal hegemony determining therights we may claim. Thus Robert O’Brien notes that “[w]hereas many civil and politicalrights resonate with the globalization trajectory, workers’ rights contradict its neoliberal form

29

Mantouvalou, above n 23, at 379.
See also Philip Alston Labour Rights as Human Rights (Oxford University Press, Oxford, 2005); PaulO’Higgins et al (eds) Human Rights and Labour Law: Essays for Paul O’Higgins (Mansell, London, 1994).
31
Aharon Barak The Judge in a Democracy (Princeton University Press, Princeton (NJ), 2006) at 85 (footnotes
omitted).
32
Virginia Mantouvalou “Are Labour Rights Human Rights?” 3 Eur Lab LJ 151 at 172.
33
For example, Stanley Fish argues that freedom of expression is an instrument for attaining other goals, not an
end in itself, even though free speech is commonly seen as one of the most important human rights: see,
generally, Stanley Fish There’s No Such Thing as Free Speech, and It's a Good Thing, Too (Oxford University
Press, New York, 1994).
34
Böhning, above n 5, at 3. “Core rights”, Anne Trebilcock says, “go to the essence of human dignity at work,
touching upon bedrock values of freedom and equity”: see Anne Trebilcock “The ILO Declaration on
Fundamental Principles and Rights at Work: A New Tool” in Roger Blanpain and Chris Engels (eds) The ILO
and Social Challenges of the 21st Century: The Geneva Lectures (Kluwer Law International, The Hague, 2001)
105 at 107, cited by Judy Fudge “The Discourse of Labor Rights: from Social to Fundamental Rights?” (2007)
29 Comp Lab L & Pol’y J 29 at 39. Following Karel Vasak’s taxonomy of rights, civil and political rights
constitute the first generation; economic, cultural and social rights represent the second generation; and theemerging third generation rights relate to the environment: see Karl Vasak “Human Rights: A Thirty-Year
Struggle: The Sustained Efforts to Give Force of Law to the Universal Declaration of Human Rights” (1977)
30(1) UNESCO Courier 28. Vasak’s taxonomy is about the historical emergence of rights claims. There is no
reason why a sustainable environment should be a less pressing concern for citizen-employees than, say,freedom of speech.
30

25and engender greater resistance”.35 Asserting social rights may be the most obvious response
to globalisation,36 but all rights must be protected and fostered.
To reiterate, the Vienna Declaration recognises that “[a]ll human rights are universal,
indivisible and interdependent and interrelated”.37 This declaration may represent an ideal to
be attained, rather than an empirical observation; nevertheless, it indicates the inclusivenessand interdependence of human rights. The long-term goal must be to ensure that all rights arerespected, always and everywhere. Of course, if we are to move from ethical imperatives tojusticiable claims, some prioritisation and strategising is necessary. For example,
contemplating the guarantee of freedom of association enshrined in the Canadian Charter ofRights and Freedoms,38 Judy Fudge proposes that:39
The constitutional protection of freedom of association could, and should, be used toembed labour markets in an institutional framework that requires any derogation fromthe values of democracy and human dignity to be justified.

Nevertheless, sight should not be lost of the universality, indivisibility, interdependence andinterrelatedness of human rights, in the community and the workplace.
Rights and Responsibilities
The principal emphasis of this paper lies with fundamental rights in the context of
employment, but it is axiomatic that “human rights come with responsibilities and must be
exercised in a way that respects the rights of others”.40 As responsible citizens, rights-bearing
employees must exercise their rights responsibly. Following the virtue ethics of Alasdair
MacIntyre, who argues that the fundamental moral and political idea is that individuals
should pursue what is virtuous for them,41 all social actors should perform their roles
responsibly, that is, to do “what anyone filling such-and-such a role ought to do”.42 With
regard to freedom of expression, for example, the role of the virtuous speaker is not to ensurethat their utterances do not offend anyone but rather to inform others as best they can.

Robert O’Brien “Continuing Incivility: Labor Rights in a Global Economy” (2004) 3(2) JHR 203 at 203.
See Fudge, above n 34, at 29.
37
Vienna Declaration, above n 22, at [5].
38Canada Act 1982, c 11 (UK), s 2(d); compare with NZBORA 1990, s 17.
39
Judy Fudge “Labour Rights as Human Rights: Turning Slogans into Legal Claims” (2014) 37 Dalhousie LJ
601 at 618-619.
40
Charter of Human Rights and Responsibilities Act 2006 (Vic), preamble.
41
John Cornwell “MacIntyre on Money” (2010) 176 Prospect 58 at 58.
42
Alasdair MacIntyre After Virtue: A Study in Moral Theory (3rd ed, Duckworth, London, 2007) at 184 (italics
in original).
35
36

26

Employee-Citizens within Corporations
This part of the paper considers, at a principled level, the position of employee-citizens of the
Human Rights State within corporations.
Responsibilities
Mark Bovens identifies five forms of active responsibility (hierarchical, personal, social,professional and civic).43 Professional responsibility and loyalty to fellow citizens are
currently the most relevant. Herbert Hart designates professional responsibility as roleresponsibility, and describes it in the following terms:44…whenever a person occupies a distinctive place or office in a social organization, towhich specific duties are attached to provide for the welfare of others or to advance insome specific way the aims or purposes of the organization, he is properly said to be
responsible for the performance of these duties, or for doing what is necessary to fulfil
them.

Duties such as these are typically “of a relatively complex or extensive kind, defining a‘sphere of responsibility’ requiring care and attention over a protracted period of time”.45 A
responsible person is for Hart:46…one who is disposed to take his duties seriously; to think about them, and to makeserious efforts to fulfil them. To behave responsibly is to behave as a man (sic) would
who took his duties in this serious way.

Likewise, MacIntyre’s conception of virtue lies in performing the roles we fill in the rightway.47 The virtuous employee should, then, behave responsibly towards their employer. But
employees are also – indeed, first and foremost – citizens of the Human Rights State, andmust always take that role seriously.
Civic responsibility requires professional responsibility to be understood in the context ofcitizenship. And yet, Bovens says: 48…when employees or civil servants pass through the company gate or up the steps in themorning, they lay aside their citizenship and only retrieve it at the end of the working
day.

This assertion may constitute an exercise in hyperbole or may, indeed, represent ananachronism.49 Nevertheless, it is plausible that the full exercise of rights and responsibilities
43

See generally Mark Bovens Verantwoordlijkheid en Organisatie: Beschouwingen over Aansprakelijkheid,
Institioneel Burgerschap en Ambtelijke Ongehoorzaamheid (WEJ Tjeenk Willink, Zwolle (Netherlands), 1990)(translated ed: Gregor Benton (translator) Mark Bovens The Quest for Responsibility: Accountability andCitizenship in Complex Organisations (Cambridge University Press, Cambridge, 1998)).
44
HLA Hart Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon Press, Oxford, 1968)
at 212.
45
At 213.
46
At 213.
47
MacIntyre, above n 42, at 184.
48
Bovens, above n 43, at 180.
49
Since Bovens wrote, the principle of whistle-blowing, for example, has received statutory approval: see, forexample, Public Interest Disclosure Act 1998 (UK); Protected Disclosures Act 2000.

27

within the workplace is curtailed. Such suspension of civil rights and responsibilities isincompatible with citizenship in the Human Rights State; indeed, without seeking to trivialise
contractual promises made to an employer, those “civil duties and civil rights [must] set
limits to one’s obligations, to obedience and confidentiality” to an employer.50
Employees
Stephen Bottomley observes that the least considered area of the interaction between
corporations and people in the human rights sphere is the position of employees withinorganisations.51 Nevertheless, it is an important interaction in which the imbalance of power
between people and corporations is a critical consideration. This imbalance is not simply
about economic wherewithal; as John Kenneth Galbraith explains, “[t]he power in thebusiness firm and the state that once emanated from property – from financial resources –now comes from the structured association of individuals, from bureaucracy.”52
Imbalance in Power – What Corporations Do to Employees
Power in its various forms is a crucial consideration in the relationship between corporations
and their employees. Social power, which Otto Kahn-Freund identifies as “[t]he power tomake policy, to make rules and to make decisions, and to ensure that these are obeyed” iscentral to the employment relationship.53 Law is therefore “a technique for the regulation ofsocial power”.54 With particular relevance to the typically unequal employment relationship,
Edgar Bodenheimer observes, if the law assumes that contracting parties have broadly equal
power, “subordination and subjection” are perpetuated.55 Within the framework of the rules
which corporations create to govern their employees, Foucaultian disciplinary power, which
drills down to the capillaries of domination, is also highly relevant.56
Bovens observes:57
The inequality of power between individual employees and complex organizations andthe weak position of most employees on the labour market in practice minimizes theircontractual freedom. Most employees cannot afford to give up their jobs in order toregain complete command over their civil rights. De facto their position does not differ
all that much from that of a citizen in an authoritarian state.

From a perspective of discursive democracy, many employer-imposed rules lack legitimacy
because, as Jürgen Habermas argues, “the only regulations and ways of acting that can claim
50

Bovens, above n 43, at 180.
Stephen Bottomley “Corporations and Human Rights” in Stephen Bottomley and David Kinley (eds)
Commercial Law and Human Rights (Ashgate, Aldershot, 2002) at 47; Bovens, above n 43 at 158.
52
John Kenneth Galbraith The Anatomy of Power (Houghton Mifflin, New York, 1983) at 48.
53
Otto Kahn-Freund Labour and the Law (2nd ed, Stevens & Sons, London, 1977) at 3.
54
At 3. Ian Smith and Aaron Baker note that cooperation rather than obedience may be a more appropriate
approach to the employer-employee relationship in the contemporary workplace: see Ian Smith and Aaron
Baker Smith & Wood’s Employment Law (Oxford University Press, Oxford, 2015) 178.
55
Edgar Bodenheimer Power, Law and Society: A Study of the Will to Power and the Will to Follow (Crane,
Russak, New York, 1973) at 11.
56
See Michel Foucault “Two Lectures” in Colin Gordon (ed) Power/Knowledge: Selected Interviews and Other
Writings 1972-1977 (Pantheon Books, New York, 1980) at 78-108; Michel Foucault “Afterword: The Subject
and Power” in HL Dreyfus and Paul Rabinow (eds) Michel Foucault: Beyond Structuralism and Hermeneutics(University of Chicago Press, Chicago, 1982) at 208-12.
57
Bovens, above n 43, at 171.
51

28

legitimacy are those to which all who are possibly affected could assent as participants inrational discourses”.58 Who would freely agree to or willingly obey the draconian restrictionof rights commonly incorporated into employment contracts?59 For example, vulnerable, lowpaid employees working in service stations or supermarkets are commonly required under
their employment contracts to compensate their employers for theft by third parties. 60 These
abuses of bargaining power may be judicially corrected or reversed following publicpressure61 but nevertheless indicate employers’ assumptions about their unfetteredprerogative to include stipulations in employment agreements which should be considered an
unconscionable exercise of power.62
For Bovens:63
Alongside the freedom to strike, which they have long held, employees would also haveto be able to claim from their employers the protection of other civil rights, such as the
freedom of religion, the freedom of speech, the freedom of association and meetings,
protection of their privacy in letters, telephone and e-mail.

Freedom of expression is commonly considered primus inter pares among human rights,64
and yet employees’ freedom of expression is often restricted in numerous ways, forexample:65 views expressed on social media;66 appearance; cultural expression, such as thedisplay of moko; and expression of religious belief. (In contrast, corporations may be able toclaim that they have rights of religious conscience in order to impose restrictions on theiremployees’ health choices.67) In New Zealand, the right to privacy is evolving both in statutelaw and the common law.68 Despite this evolution, privacy of personal emails and othercommunications sent and received on corporate systems is typically surrendered under an
58

See Habermas, above n 26, at 458.
It may also be noted that people are more likely to disobey rules which they consider immoral: see Tom Tyler
Why People Obey the Law (Princeton University Press, Princeton (NJ), 2006) 36-37.
60See, for example, Caleb Harris “Workers charged for petrol drive-off” The Dominion Post (online ed,
Wellington, 20 November 2014).
61
It is a moot point whether these kinds of deductions are permissible under the Wages Protection Act 1983, ss
4-6. It is clear, however, that public opinion is opposed to employers giving effect to these kinds of rights todeduct: see, for example, Caleb Harris “Angry customers call for petrol station boycott” The Dominion Post
(online ed, Wellington, 20 November 2014).
62
Compare with extensive protections under consumer law. Harry Arthurs’ hypothetical “law of economic
subordination and resistance” would protect both consumers and employees: see Harry Arthurs “Labour Law as
the Law of Economic Subordination and Resistance: A Counterfactual?” (2012) 8(3) Osgoode CLPE Research
Paper No. 10/2012 (Osgoode Hall Law School).
63
Mark Bovens “The Corporate Republic: Complex Organizations and Citizenship” in Emilios Christodoulides(ed) Communitarianism and Citizenship (Ashgate, Aldershot, 1998) 158 at 171.
64
See Thomas J’s comments in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [152]; compare with
Fish, above n 33.
65
In principle, an employer may not regulate personal issues or out of work activities “unless it can show somespecial considerations bring such matters within the scope of employment”: see Smith and Baker, above n 54, at
178. Of course, as writer of the employment agreement (individual, at least) an employer has licence to identify
which special considerations might bring personal expression, such as facial piercings, within the scope of
employment. See also Cynthia Estlund “Free Speech Rights that Work at Work: From the First Amendment to
Due Process” (2007) 54 UCLA L Rev 1463.
66
See Paul Wragg “Free Speech Rights at Work: Resolving the Difference between Practice and Liberal
Principle” (2015) 44(1) Ind Law J 1.
67
The United States Supreme Court decision in Hobby Lobby recognised the freedom of religious belief for a
private, nevertheless economically significant, corporation: see Burwell v Hobby Lobby Stores Inc 573 US(2014).
68
See review of Privacy Act 1993 and the emerging tort of invasion of privacy following Hosking v Runting[2004] NZCA 34; (2005) 1 NZLR 1.
59

29

employment agreement,69 and privacy outside work may be ostensibly contracted out.70
However, the denial of human dignity is the greatest concern. In the Kantian view, because
humans uniquely possess dignified autonomy, they can never be instruments for others’
ends.71 It is, then, a radical betrayal of citizenship in the Human Rights State to be complicitin treating human beings as instruments for corporate ends. The dehumanisation of
employees by treating them – rather than their labour72 – as factors of production is far froman innovation,73 but emerging technology enables workers to be monitored and tracked likemachines or packages in a distribution centre.74
Recalcitrance and Virtue – What Employees Do to Corporations
Every organisation faces the problem of dissent within; hence the need for internal
submission.75 For Michel Foucault:76
The power relationship and freedom’s refusal to submit cannot therefore be separated.
The crucial problem of power is not that of voluntary servitude (how could we seek to beslaves?). At the very heart of the power relationship, and constantly provoking it, are therecalcitrance of the will and the intransigence of freedom.

The ability to enjoy full rights in the workplace is, it is submitted, tantamount to experiencing
the freedom which the operation of disciplinary power denies. If power is recalibrated in theemployment relationship, the liberated employee should have no motivation to engage inpetty acts of recalcitrance. Freedom would not, then, constitute a licence to shirk or tosabotage the enterprise. MacIntyre translates the ancient Greek equivalent of “virtue” as“excellence”.77 The responsible employee may, therefore, be expected to strive for excellenceand be loyal to the organisation in accordance with their conscience as a citizen of the Human
Rights State.
Virtue and Outsiders – What Employees Do to Others
Corporate actors may engage in atrocious behaviour. As Kent Greenfield observes, “thecorporate form insulates individuals from responsibility”.78 Indeed, Maury Silver and Daniel
Geller argue that “[t]he fragmentation of action and the need for job security explain the ease69

It is a moot point whether copyright in a personal email sent from a corporate system belongs to the employee
or the employer: see Copyright Act 1994, s 21(2). Certainly, copyright in an email sent by a non-employee to an
employee does not belong to the latter’s employer. This rule could have implications for reproduction of the textof the email, say, in disciplinary proceedings.
70
See, for example, David Kravets “Worker Fired for Disabling GPS App that Tracked Her 24 Hours a Day”
Ars Technica (12 May 2015) <www.arstechnica.com>.
71
Immanuel Kant Grundlegung zur Metaphysik der Sitten (Johann Friedrich Hartnoch, Riga (Latvia, thenPrussia), 1785) (translated ed: HJ Paton (translator) Immanuel Kant The Moral Law: Groundwork of theMetaphysics (Taylor & Francis, London, 2012)) at 30-31.
72
See also Judy Fudge “Labour Is Not a Commodity: The Supreme Court of Canada and the Freedom of
Association” (2004) 25 Saskatchewan L Rev 67.
73
See Frederick Winslow Taylor The Principles of Scientific Management (first published 1911, Dover
Publications, Mineola (NY), 1997).
74
See Rory Cellan-Jones “Office puts chips under staff’s skin” BBC (29 January 2015) <www.bbc.com>.
75
See Galbraith, above n 52, at 60.
76
Michel Foucault “The Subject and Power” in James Faubion (ed) Power (trans Robert Hurley et al) (The New
Press, New York, 2000) 326 at 342.
77
MacIntyre, above n 42, at 184.
78
Kent Greenfield The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities (Universityof Chicago, Chicago, 2004) at 73.

30

with which individuals will accept almost any organizational legitimation”.79 Such
exculpation and isolation cannot stand. Employees must be able to exercise their rights andhonour their responsibilities to other members of the moral and political community.
Executive Directors
Company law does not distinguish in principle between the roles of executive and nonexecutive directors.80 Consequently, the duties of the most senior corporate employees are
typically considered from the perspective of the fiduciary duties all directors owe to thecompany.81 But, notwithstanding their position of power and control within a corporation,
executive directors are employees in basically the same way as other staff members,82 albeit
they are employees who face particular ethical and legal challenges. Thus, in accordance withan extreme expression of shareholder primacy,83 which is currently dominant in AngloAmerican corporate theory, in order to comply with their fundamental duties, directors shouldcause their companies to break the law if it appears profitable to do so.84 There is not spacecurrently to consider directors’ duties in any but the most superficial way but it is pertinent tonote that, first, Corporate Social Responsibility scholars plausibly argue that directors do not
owe a single duty to maximise shareholder wealth;85 and, second, certain corporate statutes
specifically mandate multi-fiduciary obligations.86 For example, in terms of profitability andefficiency, a New Zealand state-owned enterprise (SOE) is benchmarked against privately
owned companies, but also owes a statutory duty to be “a good employer” and “anorganisation that exhibits a sense of social responsibility by having regard to the interests ofthe community in which it operates”.87 Furthermore, in recent decades, dual charter social
enterprise vehicles have proliferated.88 These organisations contribute to the normalisation of
the idea that amoral profit does not have to be the sole purpose of a corporation.89

Maury Silver and Daniel Geller “On the Irrelevance of Evil: The Organization and Individual Action” (1978)
34 J Soc Issues 125 at 131, cited in Douglas Litowitz “Are Corporations Evil?” (2004) 58 U Miami L Rev 811
at 841.
80
See Companies Act 1993, s 126 on who is a director; but see also s 137(c) on the position of a director in acompany in relation to their duty of care.
81
See, in particular, the basic fiduciary duty enshrined in Companies Act, s 131.
82
See Lee v Lee’s Air Farming Ltd [1960] UKPC 33; [1961] NZLR 325.
83
See generally Frank Easterbrook and Daniel Fischel The Economic Structure of Corporate Law (Harvard
University Press, Cambridge, 1991).
84Frank Easterbrook and Daniel Fischel argue: “[directors] do not have an ethical duty to obey … laws justbecause the laws exist. They must determine the importance of these laws … [directors] may not only but also
should violate the rules when it is profitable to do so”. See Frank Easterbrook and Daniel Fischel “Antitrust
Suits by Targets of Tender Offers” (1982) 80 Mich LR 1155 at 1177.
85
See, for example, Thomas Donaldson and Lee Preston “The Stakeholder Theory for the Corporation:
Concepts, Evidence, Implications” (1995) 20 Academy of Management Review 65.
86
On CSR in New Zealand, see Jonathan Barrett and John Horsley “Social Justice and the Veil of Incorporation:
A New Zealand Perspective” in Ivan Tchotourian (ed) Company Law and CSR: Convergence or Divergence, a
New Approach about the New Challenge of Law (Editions Bruylant, Brussels, forthcoming).
87
See State-Owned Enterprises Act 1986, s 4(1). Furthermore, as the principal SOE shareholder, the Crown
must act in a manner consistent with the principles of the Treaty of Waitangi as established in New Zealand
Maori Council v Attorney-General [1987] 1 NZLR 641 (Court of Appeal): see State-Owned Enterprises Act
1986, s 9.
88
See generally Matthew Doeringer “Fostering Social Enterprise: A Historical and International Analysis”(2010) 20 Duke J Comp & Int’l L 291. The Companies Act 1993 is sufficiently flexible to allow dual chartersocial enterprises to operate as companies: see Jonathan Barrett “Should New Zealand Adopt Hybrid Social
Enterprise Legislation?” (2013) 19 NZBLQ 253.
89
On multi-fiduciary duties, see generally Irene Lynch-Fannon Working within Two Kinds of Capitalism:
Corporate Governance and Employee Stakeholding: US and EC Perspectives (Hart Publishing, Oxford, 2003).
79

31

Rather than specifying the corporate stakeholders, whose presumably disparate interests
directors must balance (although they all have an interest in the greater community), directors
could be granted a safe harbour protection along the lines of a public policy catch all. For
example: no breach of the fundamental duty of loyalty to the corporation occurs if thedecision is in line with the prevailing norms of the Human Rights State. Such a rule might beconsidered vague, but is no less nebulous than an injunction to act in the best interests of thecompany,90 a fictive legal persona.91 This protection would represent a return to Edwin
Dodd’s idea that “business is permitted and encouraged by the law primarily because it is ofservice to the community rather than because it is a source of profits to its owners”.92

Policy and Legal Implications
This part of the paper sketches the basic policy proposals that may inform the citizen-oriented
corporation and employment law.93 These are: rendering void certain terms in an employment
agreement; establishing a general right of refusal; and reaffirming the role of whistleblowing.
Void Terms
Any terms of an employment agreement which seek to restrict an employee’s human rights ortheir responsibilities to other members of the community should be considered void andexcisable from the employment agreement.
Employees’ Rights of Refusal
Under the common law, an employer may not order an employee to perform an illegal act,and so it is not an issue of disobedience should the employee refuse to comply.94 But we needto go further than refusing to commit crimes. Since human rights are essentially ethical innature, despite their final expression in legal term,95 employee-citizens of the Human Rights
State must have a general right of refusal to perform any action that breaches their own rights
or restricts their responsibilities to other members of the community. As Bovens explains:96…a general right of functionaries to remain indemnified against dismissal or otherdisciplinary measures when they refuse to carry out an assignment that in itself, or as aresult of its consequences, is in conflict with important democratic or legal [or humanrights] principles.

Such an indemnity should maintain “the autonomy and personal integrity of individualfunctionaries” but also contribute to developing “the power of morality within complex
organisations”.97 Grounds for refusal would include: violation of rules and regulations;90

See Companies Act, s 131.
As Lord Hoffmann observed in Meridian Global Funds Management Asia Ltd v Securities Commission[1995] 3 NZLR 7 (PC) at 12, there is no such thing as the company, “no ding an sich”.
92
E Merrick Dodd Jr “For Whom Are Corporate Managers Trustees?” (1932) 45 Harv L Rev 1145 at 1149.
93
The role of executive directors has been noted and the correlative need for changes in company law.
94
See Gregory v Ford [1951] 1 All ER 121.
95
See Stephen Toope “Cultural Diversity and Human Rights (F.R. Scott Lecture)” (1997) 42 McGill LJ 169 at
180.
96
Bovens, above n 43, at 180.
97
At 180.
91

32

substantial and specific danger to public health, safety, or the environment; abuse of power ora demonstrable and flagrant conflict with the aims of the organisation; demonstrable, largescale waste of public funds.98
Bovens argues that a right of refusal:99…is a form of internal control; the functionaries of the organisation are often the first to
realise that a policy of assignment is harmful or likely to have otherwise undesirable
consequences…[it] emphasises, moreover, the autonomy and personal integrity of
individual functionaries – even when they are but small cogs in a large machine. In thisway, the development of such a right to refuse can help increase the power of morality
within complex organisations. It can contribute to the emergence of bureaucratic
morality in which each functionary knows that he is responsible for the consequences ofthe particular task he performs. The introduction of such a right therefore has animportant symbolic function. It does not yet offer any direct protection nor does it lead
automatically to virtuous action, but it shows that there are alternatives.

Refusal to obey an unconscionable instruction is not a manifestation of disobedience orrecalcitrance.100 But such a right would need to be exercised conscionably and responsibly.
“Compulsory resignation would be appropriate if it could be proved that the refusal was
groundless, negligent, or careless [or malicious]”.101
Whistle-blowing
A consideration of whistle-blowing generally starts with Ralph Nader’s definition: 102…an act of a man or woman who, believing that the public interest overrides the interestof the organization he (sic) serves, publicly “blows the whistle” that the organization is
involved is corrupt, illegal, fraudulent or harmful activity.

Whistle-blowing performs a critical regulatory function. As Christopher Stone explains:103
The corporate work force ... in the aggregate, will always know more than the bestplanned government inspection system that we are likely to finance. Traditionally,
workers have kept their mouths shut about “sensitive” matters that come to theirattention. There are any number of reasons for this, ranging from the intangible forces ofcorporate loyalty and peer group expectations, to the employee’s more solid fears of
being fired or getting his source of income shut down for noncompliance with some law.
And there is also at work, of course, the sheer indifference that workers may feel in ahuge network of different responsibility.

Whistle-blowing is disruptive; it subverts “the hierarchical principles and role-playing
niceties upon which all organizations are built”.104 Consequently, organisational responses to98

At 184-185.
At 181-182.
100
At 182.
101
At 189.
102
Ralph Nader, Peter Petkas and Kate Blackwell Whistle Blowing: the Report of the Conference on
Professional Responsibility (Grossman Publishers, New York, 1972) at vii. See also Maurice Punch and James
Gobert “Whistle-Blowing and the Public Interest Disclosure Act 1998” (2000) 63(1) MLR 25.
103
Christopher Stone Where the Law Ends: The Social Control of Corporate Behavior (Harper & Row, New
York, 1975) at 213.
104
At 214-215.
99

33

whistle-blowing can be harsh and disproportionate.105 But legal structures which permit thedisruption of misplaced loyalty and fealty to the corporation are necessary if a culture ofrights and responsibilities is to permeate organisations. Once more, employees must act
conscionably and responsibly – whistle-blowing is justified on the basis of “individual
accountability and employee citizenship”,106 but is “an emergency break that is not suitablefor use in routine situations”.107
The Protected Disclosures Act 2000 does, of course, give legislative effect to the principle ofwhistle-blowing in New Zealand.108 Nevertheless, the Act does not protect leaks to the media
which may be the most effective and expeditious way of bringing corporate malfeasance topublic attention.109 Furthermore, a Sunday Star-Times investigation showed that, not only isthere great public confusion about the Act,110 but also public opinions on whistle-blowers
varies from “heroes to pond life with an agenda”.111 Whistle-blowers face, among otherconsequences, harassment and retaliation from co-workers.112 Indeed, it is the culture oforganisations which treat whistle-blowing as betrayal that is most difficult to counter, and it
is perhaps impossible for legislation to achieve this alone.113

Conclusion
This paper has outlined the concept of the Human Rights State, and has argued that fullinclusion in that moral and political community constitutes citizenship. Being a citizen, in
this sense, is not optional, partial or negotiable – citizenship cannot be ‘swiped-off’ at theentrance to the corporation and reassumed on exit. Employers may increasingly seek tocontrol employees’ working and non-working lives; citizenship of the Human Rights State
demands an opposite momentum so that a culture of rights and responsibilities permeates theworkplace.
To paraphrase Norman Kirk, what should really matter to us as citizens of the Human Rights
State “is our sense of social and moral responsibility in translating material wealth into
human values”.114 Corporations provide jobs and create wealth, but they are no more than a
105

For example, leaked documents regarding a restructure of the Ministry of Foreign Affairs and Trade led to adraconian witch hunt: see Adam Bennett “Ombudsman investigating complaint against MFAT leak” The New
Zealand Herald (online ed, Auckland, 17 June 2014).
106
Bovens, above n 43, at 212.
107
At 214.
108
See Catherine Webber “Whistleblowing and the Whistleblowers Protection Bill” (1995) 7 Auckland UL Rev
933; Gehan Gunasekara “News Media Exposure, Corporate Insiders, and the Dilemmas of Whistle-blowers”(2005) NZBLQ 3.
109
See PACE Resolution 1729/2010 on the Protection of “whistle-blowers” (text adopted by the Assembly on
29 April 2010 (17th Sitting)); Dirk Voorhoof “Whistleblowing and the Right to Freedom of Expression andInformation under the European Human Rights System” (EUI Seminar, Centre for Media Pluralism and Media
Freedom, Florence, 30 September 2013).
110
The Ombudsman published a plain language guide to the Protected Disclosures Act a few weeks before the
Sunday Star-Times article went to press: see Beverley Wakem Making a protected disclosure – “blowing thewhistle” (3 November 2012).
111
See Rob Stock “NZ’s attitudes to whistleblowers” Sunday Star-Times (online ed, New Zealand, 18
November 2012).
112
See Voorhoof, above n 109.
113
See Jeanette Ashton “15 Years of Whistleblowing Protection under the Public Interest Disclosure Act 1998:
Are We Still Shooting the Messenger” (2015) 44(1) Ind Law J 29.
114
Cited by Margaret Hayward Diary of the Kirk Years (Reed, Wellington, 1981) at 180.

34

mechanism for enabling productive human cooperation. This paper has argued thatcitizenship is full inclusion in the Human Rights State. The workplace cannot be an exception
to citizenship. Indeed, given the critical importance of employment for most of us, theworkplace is the key space where rights and responsibilities must be nurtured and protected.
The power of employers to curtail their employees’ rights and responsibilities by contract
must be restricted. Yet, following Bovens, even where restrictions are in place, they should
be subservient to a fundamental right of refusal. Such a right would not inhibit employees
from acting honestly and diligently for their employers. Employees do indeed behave
virtuously when they honour the conscionable promises they have made to their employers,
but giving effect to those promises must not be at the expense of employees’ civic
responsibilities owed to other citizens.
In workplaces where respect for human rights and responsibilities are normalised into
everyday behaviour, both in the employment relationship and in dealings with the generalcommunity, exercise of a right of refusal or whistle-blowing should be a rare occurrence.
Furthermore, when corporations are no longer able to gag or otherwise restrict theiremployees’ exercise of their rights and responsibilities, they will become more accountable to
the general community.

35

New Zealand Journal of Employment Relations, 41(2): 36-57

Privacy Law Reform in New Zealand: Will it Touch theWorkplace?
PAUL ROTH
Abstract
This paper explores the implications of the introduction of new information-gathering
technologies into the workplace. It concludes that, unfortunately, proposed reforms to
the Privacy Act 1993 are unlikely to ‘step in’ to protect workers’ rights to privacy. A
comparison between privacy complaints in the workplace in New Zealand and Hong
Kong demonstrates a regrettably lax approach on the part of New Zealand’s privacy
regulatory actors and bodies. The issue of workplace surveillance is only going tobecome more vexed over time, as new emerging technologies develop.

Key words
Privacy Act 1993, labour law, privacy law, Privacy Commissioner, workplace
privacy, personal information.

Introduction
The Privacy Act 1993 is currently in the process of being amended in light of some of
the Law Commission’s recent review recommendations.1 The short answer to thequestion posed in the title of this paper is ‘probably not’. This would be
disappointing, because privacy interests often raise important and difficult issues in
the workplace. In particular, the collection of information about workers in relation totheir private lives and their on-the-job conduct will continue to be a flashpoint at theemployment law / privacy law interface, and this is only likely to increase as
technology develops new ways of collecting and analysing such information.
The issue is whether or not the law is ever going to step in to set some firm limits.
While there is legal support for business and managerial prerogative, and excitement
over new technological developments that can have workplace applications, the factthat workers might have any privacy rights is generally regarded as a subsidiarymatter, if it is regarded at all. And yet New Zealand is legally bound to give substanceto the right to privacy, as provided for under art 17 of the International Covenant onProfessor of Law, University of Otago.
The extensive review, which occurred between 2007 and 2011, generated the following papers: A
Conceptual Approach to Privacy (NZLC MP19, 2007); Privacy Concepts and Issues, Review of the
Law of Privacy, Stage 1 (NZLC SP19, 2008); Public Registers: Review of the Law of Privacy stage 2(NZLC R101, 2008); Invasion of Privacy: Penalties and Remedies (NZLC IP14, 2009); Invasion ofPrivacy: Penalties and Remedies: Review of the Law of Privacy, Stage 3 (NZLC R113, 2010); Reviewof the Privacy Act 1993 (NZLC IP17, 2010); Review of the Privacy Act 1993: Review of the Law ofPrivacy, Stage 4 (NZLC R123, 2011).
1

36

New Zealand Journal of Employment Relations, 42(1): 36-57
Civil and Political Rights 1966 (ICCPR):2
1. No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on hishonour and reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.

While it is true that inroads can be made into some human rights with the individual’s
consent, such as the right to privacy, agreeing to be an employee does not mean that
individuals have completely surrendered the right. Interference with privacy must not
be “arbitrary”. This means that there must be some reasonable basis for employer
inroads into the right, and that the interference itself must be reasonable.3
Moreover, while individuals may in law consent to intrusions into their personal
sphere, it is usually because refusal is not a practical option. In addition to beingbound by the ICCPR, New Zealand also has a Privacy Act:4…to promote and protect individual privacy in general accordance with the
Recommendation of the Council of the Organisation for Economic Co-operation
and Development Concerning Guidelines Governing the Protection of Privacy
and Transborder Flows of Personal Data (OECD Guidelines).

The standards set out in this instrument, however, have been implemented in New
Zealand law in a way that is highly flexible, and that tends to be balanced more
towards the employer’s rather than the employee’s benefit. This could be due to thevalue our society places on material or quantifiable, as opposed to intangible,
interests, as well as the political influence of business as opposed to human rights
proponents.
Some jurisdictions, such as Hong Kong, have set stricter limits than New Zealand on
employer intrusions into employee privacy, though each purports to be acting inaccordance with international privacy standards. The Hong Kong position may be acase of human rights protections making up for a lack of employment protections.
The efficacy of data protection regulation in protecting workers’ privacy interests
generally tends to depend on the approach of the data protection authorities and legal
institutions that apply and interpret the law. Such limits as have been imposed in New
2

999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976); ratified
by New Zealand on 28 December 1978.
3
The Human Rights Committee, which is the supervisory body for the ICCPR, has explained that
“The introduction of the concept of arbitrariness is intended to guarantee that even interference
provided for by law should be in accordance with the provisions, aims and objectives of the Covenantand should be, in any event, reasonable in the particular circumstances”: General Comment 16: Article
17 (The right to respect of privacy, family, home and correspondence, and protection of honour andreputation) HRI/GEN/1/Rev.9 (Vol I) (adopted 8 April 1988) at [4]. See, for example, Rojas García v
Colombia, Communication No 687/1996, UN Doc CCPR/C/71D/687/1996 (2001); M G v Germany,
Communication No 1482/2006, UN Doc CCPR/C/93/D/1482/2006 (2008); Nystrom, Nystrom andTurner v Australia, Communication No 1557/2007, UN Doc CCPR/C/102/D/1557/2007 (2011);
Naidenova et al. v Bulgaria, Communication No 2073/2011, UN Doc CCPR/C/106/D/2073/2011(2012). One commentator notes that “regardless of its lawfulness, arbitrary interference contains
elements of injustice, unpredictability and unreasonableness”: Manfred Nowak UN Covenant on Civil
and Political Rights: CCPR Commentary (2nd rev ed, Engel, Kehl am Rhein, 2005) at 383.
4
Privacy Act 1993, long title.

37

New Zealand Journal of Employment Relations, 42(1): 36-57
Zealand mainly seem to have been set by the specialist employment law institutions
rather than through privacy law.
There are arguably two factors that account for a lack of active protection for workers
in the privacy context. Firstly, there is the nature of the relationship, which is viewed
as consensual rather than one where there is a power imbalance between the parties
that needs no more in the way of adjustment than guarantees of minimal employment
law rights, as opposed to civil rights. Secondly, the Privacy Commissioner has fallen
into a legitimising role in relation to new technologies, facilitated by the lack of any
real power to exert control over new and intrusive practices. This characteristic is notunique to New Zealand officials, but is common among privacy commissioners
elsewhere who have been left to advise from the sidelines. The New Zealandapproach will be compared here to that in Hong Kong, where the law is similarly
based on the OECD Guidelines, but standards appear to have been upheld morestrongly in the face of employer initiatives to employ new technologies to collectworker information.

Overview of the Privacy Act in Relation to Employment
Privacy legislation covering both the public and private sectors has now been in force
in New Zealand for just over 23 years. The Privacy Act 1993 is based around 11
information privacy principles that draw on the 1980 OECD Guidelines.5 The
currency of this legislation is “personal information”, which is defined as information
about an identified or identifiable individual.6 The concept of “personal information”
in New Zealand also covers both opinion and false information about an individual.
“Personal information” need not be in recorded form,7 and the concept extends towhat is held in a person’s memory. A case that illustrates the utility of extending theconcept to unrecorded information in the employment context is that of an
unsuccessful job applicant who requested the interview notes of an appointment
panel. Although the panel members destroyed their notes after the employment
decision was made, on review the individual panel members were asked “each tosupply a written statement of reasons why the other candidates had been consideredbetter suited, or the requester considered less suited, for the position.”8
There have been many New Zealand privacy cases relating to the workplace. An
important feature of the legislation is that a breach of a privacy principle on its own
does not necessarily lead to liability under the Privacy Act. Except in the case ofdenied access or correction rights, the breach of a privacy principle must always be
accompanied by some loss or harm, and in the case of emotional harm, there must be“significant humiliation, significant loss of dignity, or significant injury to feelings”. 9This functions as an important sifting mechanism in the legislation to filter out
complaints of a minor nature.
5

Section 6.
Section 2.
7
See, for example, Re Application by L [information stored in person's memory] (1997) 3 HRNZ 716.
8
Case No 794 (1987) 8 CCNO 66 (Ombudsmen’s Cases), a public sector case dealt with under the
Official Information Act 1982; after 1993, it would have been dealt with in a similar manner by thePrivacy Commissioner under the Privacy Act.
9
Section 66(1)(b)(iii).
6

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New Zealand Journal of Employment Relations, 42(1): 36-57
The Privacy Commissioner oversees the application of the Act and plays an importantrole in investigating and conciliating complaints. The Privacy Commissioner’s views,
however, are not legally binding.10 Only the Human Rights Review Tribunal candetermine legal issues at first instance,11 but it cannot do so unless the Privacy
Commissioner has first investigated the complaint. If a complaint has not been
resolved by the Privacy Commissioner, it can be taken to the Tribunal by the Directorof Human Rights Proceedings if he decides to do so, or else personally by the
aggrieved individual. There are rights of appeal from the Tribunal to the higher courtsof general jurisdiction in the judicial hierarchy.12
The legislation, however, contains a disjunction in the processing of privacy
complaints between the approach to be taken by the Privacy Commissioner and thattaken by the Tribunal and appellate courts. This results from the Privacy
Commissioner’s express duty to balance privacy against other important social
interests, such as the right of businesses to operate efficiently,13 a balancing exercisethat does not apply to the Tribunal or appellate courts. The Court of Appeal majority
in Harder v Proceedings Commissioner once commented that s 14(a), although
directed to the Privacy Commissioner, implicitly applies to the Tribunal and appellate
courts,14 however this wider reading of s 14(a) has never been subsequently adopted.
We are therefore left with a difference in legal approach between application of the
Act by the Privacy Commissioner, and that by the Tribunal and other judicial
institutions. The reason for the difference in approach is not evident, 15 but it allows
the Commissioner to promote the settlement of complaints in a pragmatic way.
However, it also tends to permit the Commissioner to operate in a manner that is lessstrict on employers, as is evident from a number of investigation case notes. It
seemingly permits business efficiency considerations to trump workers’ privacy
interests under the information privacy principles. Neither the New Zealand Law
Commission nor the government has indicated that s 14(a) ought to be changed.
New Zealand employment law, however, has been ready to recognize the privacy
principles in the Privacy Act and has used them to inform decisions on whether an
employer’s action has been fair and reasonable, even though the specialist
employment institutions do not have the jurisdiction to interpret these principles orapply them directly; only the Human Rights Review Tribunal has such jurisdiction,with the Privacy Commissioner’s views being relevant (though of no legal force) forthe purpose of conciliating privacy complaints.16 The Employment Court has
10

Section 78. The Privacy Commissioner can only make a final and binding decision about an
unreasonable charge imposed for access to personal information held by a private sector agency(personal information held by public sector agencies is available free of charge).
11
There is currently a proposal to amend the legislation to allow the Privacy Commissioner todetermine access complaints: see Government Response to Law Commission report on Review of thePrivacy Act 1993 (27 March 2012) at 5.
12
These are the High Court, the Court of Appeal and the Supreme Court.
13
Section 14(a) provides that the Privacy Commissioner must “[h]ave due regard for the protection ofimportant human rights and social interests that compete with privacy, including the generaldesirability of a free flow of information and the recognition of the right of government and businessto achieve their objectives in an efficient way”.
14[2000] 3 NZLR 80, at [23].
15This feature of the legislation is perhaps unintentional in relation to complaints. It has greater
relevance to the Privacy Commissioner’s public advocacy function in promoting privacy.
16
The earliest employment law case drawing on the principles of the Privacy Act was Graham v
Christchurch Polytechnic CEC 48/93, 14 September 1993, which was decided just a few months after
the Privacy Act came into force. In NZ Amalgamated Engineering Printing and Manufacturing Union

39

New Zealand Journal of Employment Relations, 42(1): 36-57
recognized that “[t]he Privacy Act’s provisions may be said to represent current
community standards and expectations”,17 which are considerations that are relevant
in deciding whether or not an employer’s actions are justifiable.

Collection of Personal Information
The basic international standards relating to the collection of personal information arethat collection should not be unlimited, and that the manner of collection should befair. This is expressed in the OECD Guidelines collection limitation principle, which
provides that:18
There should be limits to the collection of personal data and any such data
should be obtained by lawful and fair means and, where appropriate, with theknowledge or consent of the data subject.

This principle is transposed into the Privacy Act by principles 1 to 4.19
Firstly, the collection of information must be “necessary” for the purpose for which it
is being collected.20 The term “necessary” has been judicially interpreted as“reasonably necessary”,21 and, as will be seen, the Privacy Commissioner tends totake a wide view of what is necessary to collect, since the legislation under s 14(a)requires the Commissioner to have:…due regard for the protection of important human rights and social intereststhat compete with privacy, including the general desirability of a free flow of
information and the recognition of the right of government and business toachieve their objectives in an efficient way.

Secondly, personal information must also be collected by lawful and fair means.22 It
should be noted that this requirement refers to the manner of collection rather than thecontent of the information concerned.
These two aspects of the collection limitation principle are non-derogable, in thesense that there are no exceptions and there is no provision for the individual
concerned to waive the right.

Inc v Air New Zealand Ltd (2004) 7 HRNZ 539 at 218, the Court observed that “the Privacy Act 1993
does not give rights or impose obligations that are enforceable in this or any other Court of law.
Questions of statutory privacy are to be dealt with by a discrete and exclusive procedure involving,
among others, the Privacy Commissioner and the Human Rights Review Tribunal.”
17
NZ Amalgamated Engineering Printing and Manufacturing Union Inc, above n 16, at 221.
18
Council of the Organisation for Economic Co-operation and Development (OECD) Guidelines
Governing the Protection of Privacy and Transborder Flows of Personal Data (1980, updated in2013) at [7].
19Section 6.
20
Principle 1.
21
Lehmann v Canwest Radioworks Limited [2006] NZ HRRT 35. In Australia, the phrase “reasonably
necessary” is employed in the legislation itself: Privacy Act 1988, APP 3.1 and 3.2. In Hong Kong,
however, the term “necessary” in the legislation is more strictly interpreted, as will be seen, inter alia,
from the cases dealing with the employment context. Both Australian and Hong Kong privacy law
were also based around the OECD Guidelines.
22
Principle 4.

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New Zealand Journal of Employment Relations, 42(1): 36-57
Thirdly, personal information should be collected with the individual’s knowledge orconsent, where appropriate.23 There are a number of exceptions to this aspect of thecollection limitation principle.
Collection of Personal Information from Job ApplicantsWithout some legal protection, job applicants are ordinarily not in a position to refuse
to disclose information requested by an employer or employment agency. Most
jurisdictions now provide remedies for discriminatory hiring practices in their humanrights legislation, and New Zealand is no different in that respect. 24 New Zealand also
has a spent convictions regime.25
Whether or not the collection of particular information is "necessary" in the preemployment context has in practice involved an assessment of its reasonableness, anddue allowance has been made here, as elsewhere generally in employment matters,
for the exercise of managerial prerogative. The views of the Privacy Commissioner
on a number of complaints indicate that, non-derogable or not, the “necessary tocollect” test in principle 1 involves a low threshold that is not difficult for an
employer to satisfy.
The Privacy Commissioner has found that personality testing of job applicants ispermissible under the Privacy Act. In one case,26 the complainant had applied for asales position and was asked to complete a form containing 200 questions. She
claimed that the questions were too personal considering the nature of the position.
The Commissioner considered that, in terms of principle 1 (“Purpose of collection of
personal information”), the collection of information about a prospective employee’s
personality and attitudes was a lawful purpose connected with the employer’s
function. He noted that other agencies used such tests, and that:…the use of such extensive questions could probably be justified only in thecontext of obtaining the information as part of a comprehensive personality test
to assess aptitude for a particular position.

On the facts of the case, the Commissioner could not say that the test was
unnecessary or that the information collected was excessive. The Commissioner
could only find a breach of principle 3 (“Collection of information from subject”),
because when the information was being collected, the complainant should have been
informed that her information would be passed to another agency for evaluation. The
Commissioner did not address the intrusiveness of the test or its relevance to theparticular position sought by the applicant. The employer, however, ought to haveborne the burden of proving that the test was indeed “necessary”. This case illustrates
that the Act tends to be ineffective in substantively limiting the amount and extent of
information collected, and that it is more easily invoked where there has been atechnical failure to comply with the proper procedure for collecting personal
23

Principle 3(1).
Part II of the Human Rights Act 1993 deals with acting on the basis of particular prohibited groundsof discrimination. In particular, s 23 makes it unlawful “to use or circulate any form of application for
employment or to make any inquiry of or about any applicant for employment” that suggests that adecision will be made on the basis of a prohibited ground of discrimination.
25
Criminal Records (Clean Slate) Act 2004.
26
Privacy Commissioner Case Note 2418 [1999] NZPrivCmr 6.
24

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New Zealand Journal of Employment Relations, 42(1): 36-57
information. In this case, the Act required that the individual concerned be informedof the intended recipients of the information. This is cold comfort, however, where
there are loose restrictions on the extent of information that can be collected.
Employment law drew upon the collection principles in the Privacy Act to assist the
Employment Relations Authority in a case where it determined whether or not an
employer had justifiably dismissed an employee. The reason for the dismissal was theemployee’s failure to volunteer information in a pre-employment form that theemployer was not entitled to collect in the first place.27 The employee was dismissed
because she allegedly misrepresented her medical condition on the form when she
applied for a sales position. The form included a question about whether she had
medical problems of any kind. In completing the question, she referred only to acondition that affected her hip joint. Once she was employed, her employer thought
she was taking an excessive number of sick days. When dismissing her, the employer
accused her of having failed to disclose at least two pre-existing medical conditions
that had a serious impact on her ability to perform her job. The Employment
Relations Authority determined that the applicant’s failure to refer to the two preexisting medical conditions did not amount to misrepresentation because theemployer was not entitled to collect this information since it was likely to be inbreach of the Privacy Act collection principles. The scope of the information sought
went beyond what was relevant to the employer’s compliance with its health andsafety obligations or the employee’s ability to do her job. The Authority’s
determination was upheld on appeal to the Employment Court, which remarked thatthe company’s question was “inappropriate” and imposed no obligation on the job
applicant to disclose all of her medical problems. Therefore, the employee could not
be justifiably dismissed because of this failure to disclose the information
concerned.28
Covert Recording
In New Zealand, there are few legal controls on surreptitious video or audio recording
in the workplace – or elsewhere for that matter. There is a prohibition against thecarrying out of surveillance by private investigators on private property without
consent of the lawful occupiers,29 and a prohibition against the surreptitious use ofvideo cameras that also have audio recording capabilities.30 Although the Privacy
Commissioner has long accepted that surreptitious recording is covered under thePrivacy Act,31 this view is questionable32 and is proposed to be clarified by a change
to the law.33

27

Attwood v Imperial Industries WA 72/01, 25 October 2001. Although this case did not arise in the
Privacy Act jurisdiction (which would have been heard in the Human Rights Review Tribunal), theEmployment Relations Authority member who delivered this decision was also the Chairperson of the
Human Rights Review Tribunal.
28
Imperial Enterprises Limited v Attwood [2002] 2 ERNZ 740 at [59].
29
Private Security Personnel and Private Investigators (Code of Conduct — Surveillance ofIndividuals) Regulations 2011, reg 6.
30
Crimes Act 1961, s 216B (“Prohibition on use of listening devices”).
31
See, for example, “Extract from a letter by the Privacy Commissioner concerning video
surveillance” in A Compilation of Materials on the Privacy Act 1993 and the Office of the Privacy
Commissioner February 1994-December 1994 (vol 2) at 252–253; and Privacy Commissioner Case
Note 0632 [1994] NZPrivCmr 27 and Case Note 16479 [2001] NZPrivCmr 6.

42

New Zealand Journal of Employment Relations, 42(1): 36-57

However, even if surveillance is covered under the Privacy Act, the legislation would
be of little avail in the workplace, to judge by the few reported cases on workplacesurveillance. In these cases, the Privacy Commissioner found workplace surveillance
to be a permissible practice. In the earliest case,34 the Commissioner dealt with an
employee’s complaint about surveillance of a work changing room in order to detect
theft. The Commissioner found that the employer was not obliged to take reasonable
steps to ensure, in accordance with principle 3 (“Collection of information fromsubject”), that the employee was aware that the surveillance was being undertaken.
This was on the basis of a number of exceptions to that principle that illustrate its
ineffectiveness in addressing surveillance activities. The Commissioner found that:

It was not reasonably practicable to draw on the fact of filming to thecomplainant’s attention as the video surveillance was intended to film covert
and unlawful behaviour (principle 3(4)(e));
It would have prejudiced the purpose of collection if the complainant had
been told that he was being filmed prior to the surveillance taking place(principle 3(4)(d)); andNon-compliance with principle 3 was necessary to gain sufficient evidenceof theft to enable prosecution of an offender before a Court (principle
3(4)(c)(iv)).

Moreover, the Commissioner found that the way the information was collected did
not breach principle 4 (“Manner of collection of personal information”) because:







The use of the video camera to collect information was lawful;
The agency had taken steps to minimise the extent of surveillance;
The locker room was not a private space intended for the removal ofclothing;
In the videotape viewed, the complainant had only been recorded removing
his outer clothing, therefore this limited amount of filming without the useof sound was not an ‘unreasonable’ intrusion upon the complainant’s
personal affairs; andGiven the need to identify the source of the stolen property and that thevideo camera was used solely for this purpose the covert surveillance was
not unfair.

In a similar subsequent case,35 a union complained on an employee’s behalf that avideo camera had been installed in a locker room. The union was concerned that
employees had not been notified before the camera was installed. The Privacy
Commissioner, however, formed the view that none of the collection principles had
been breached. The purpose of installing the cameras was to identify the persons
responsible for thefts from the lockers. A notice was displayed at the entrance to theworksite, advising that hidden cameras might operate there. The employer also
explained that previous warnings to workers about theft had been unsuccessful as a
32

See Harder, above n 14, which found that surreptitious voice recording over a telephone did notconstitute a “collection” of information, but was the receipt of unsolicited information, which is
excluded from the Privacy Act s 2 definition of “collect”.
33
Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy, Stage 4 (NZLC
R123, 2011), recommendation 7.
34
Case Note 0632, above n 31.
35
Case Note 32277 [2003] NZPrivCmr 25.

43

New Zealand Journal of Employment Relations, 42(1): 36-57
deterrent. The Commissioner therefore believed that the employer had a lawful
purpose in installing the camera, and that the collection of the information wasnecessary for that purpose. The Commissioner, however, considered that the sign at
the worksite warning employees generally of hidden filming was insufficient to alert
employees that there was a hidden camera in the locker room, as employees would
not expect that. However, an exception to the requirement of notification applied in
the circumstances, in that the employer reasonably believed that compliance would
prejudice the purposes of the collection.36 The Commissioner also did not consider
that the filming was unfair since there had previously been thefts from the locker
room, and management had been requested to find the thief. Moreover, theCommissioner did not find that the filming was unreasonably intrusive into workers’
privacy, despite the filming taking place in a locker room. This was on the basis that
activities in the shower or toilet area were not filmed; the camera was activated only
by movement near the target locker; it was necessary that the camera be able torecord faces so as to identify the thief; and the camera was to be in operation only
until the culprit was identified.
In another workplace case,37 the Commissioner found it acceptable for an employee
to surreptitiously film a colleague with a cellphone. Both worked as caregivers foryoung people with disabilities, and the worker was concerned about thecomplainant’s conduct towards clients, which could be abusive and inappropriate.
Believing the complainant posed a safety risk, he gave the recordings to theiremployer, who used them in disciplinary proceedings against the complainant that
resulted in a warning. The Commissioner observed that the recordings provided theemployer with the best evidence against the employee. The Commissioner
recognised, however, that “covert recording is intrinsically intrusive, and needs
strong justification for its use.” While finding this to be a “difficult case”, theCommissioner observed that the intrusion was justified in light of the safety reasonsfor collecting clear evidence of wrongdoing, particularly as the victims were not in aposition to complain of mistreatment on their own account. Accordingly, theCommissioner remarked that:
On balance, this was one of the rare occasions where it will be acceptable for an
onlooker to make a covert recording to ensure that evidence of what was said isaccurately captured.

As the relevant principle on the fairness of collection (principle 4) does not provide
for any exceptions, the reasoning in this case note must depend on theCommissioner’s duty under s 14 of the Privacy Act to balance privacy against otherimportant social interests. The Tribunal, however, is not bound by the samerequirement, so if the complaint had been taken further, the result might not havebeen the same.
The Privacy Commissioner did not find it acceptable to surreptitiously record aninterview with an employee suspected of stealing stock.38 The employee wasdismissed, but found out about the recording in the course of proceedings contesting
his dismissal. The Commissioner found that the employer had not breached the36

Principle 3(4)(d).
Case Note 101213 [2008] NZPrivCmr 4.
38
Case Note 16479 [2001] NZPrivCmr 6.
37

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New Zealand Journal of Employment Relations, 42(1): 36-57
collection principle that covered the lawfulness and necessity for collecting theinformation (principle 1), as collecting information and evidence relevant to apossible termination of employment was lawful and reasonably necessary for abusiness. However, the employer had breached the collection principle that requires
the individual to be informed of the collection of the information (principle 3), since
the employer obtained an accurate reproduction of the exact words and inflections
used by the employee when being interviewed. The Commissioner commented that“[t]he fact of recording an interview on tape, rather than merely relying upon written
notes and memory, is a matter that the individual should be made aware of.” The
Commissioner also found that the collection of the information was unfair (principle4), since the individual would not be aware of all “the minute details of what was said
and how it was said” that could be recorded by taping, as opposed to recording byhand or through one’s memory. The individual might also have responded toquestions differently if he was aware of the recording. The Commissioner added thatthe nature of the relationship between the parties, being an employment relationship,
and the circumstances in which the recording took place, also contributed to theunfairness.
In the specialist employment law jurisdiction, on the other hand, covert recordings ofinterviews between employers and employees have been found to be admissible as
the best evidence of what was said. For example, in the Employment Relations
Authority, an employee’s covert recording of a conversation with his employer was
accepted as evidence in his constructive dismissal case.39 The Authority held that it
would be unfair to deprive the employee of being able to prove the “resign or bedismissed” attitude of his employer. Both sides in that case relied on a Court ofAppeal decision on an appeal from the Employment Court that dealt with theadmissibility of a telephone conversation that had been covertly recorded by one ofthe parties.40 The Court of Appeal held that there could be cases where suchrecordings could breach the duty of fair dealing between the parties, but the ultimate
criterion is fairness in the circumstances. In that case, the recording was found to beadmissible.
The position regarding surveillance in the workplace in New Zealand may becontrasted with that in Hong Kong. The case law indicates that Hong Kong’s
approach is somewhat more strict than in New Zealand, with emphasis placed on the
proportionality of the practice in the circumstances.41
In one case,42 a government department installed pinhole cameras at different
locations in its regional office, including near the toilets and changing rooms. The
purpose of these was to detect crime, since there had been a series of thefts in theoffice. The Privacy Commissioner referred to his publication Privacy Guidelines:
Monitoring and Personal Privacy at Work, and stated:

39

Simms v Santos Mt Eden Ltd ERA Auckland AA 254/05, 21 August 2003.
Talbot v Air New Zealand [1995] 2 ERNZ 356, [1996] 1 NZLR 414 (CA).
41
The Office of the Privacy Commissioner for Personal Data (HK) has produced a publication to assist
employers who propose to monitor employees: Privacy Guidelines: Monitoring and Personal Data
Privacy at Work (December 2004). It is not legally binding, nor does it purport to set out definitive
statements of the law, but it is in the nature of recommendations for best practice.
42
Office of the Privacy Commissioner for Personal Data (HK) Case No 2005C06.
40

45

New Zealand Journal of Employment Relations, 42(1): 36-57… covert monitoring is not to be used unless justified as last resort measures andbeing absolutely necessary in detecting or gathering evidence of unlawful
activities, and the monitoring should be limited in scope and duration. Further,
the employer should formulate a clear employee monitoring policy by making
known and communicating to the employees the purposes of the monitoring, thecircumstances under which monitoring will take place and the kind of personal
data that will be collected.

The Commissioner found that, although the employer had a legitimate purpose inprotecting property from theft, the evidence did not show so great a risk of loss as tojustify large scale hidden filming activities, which was highly privacy intrusive. The
Commissioner remarked that:
The dimension and extensiveness of the monitoring activity carried out was outof proportion to attaining the purpose of collection, and the department was
intent upon engaging in continuous and universal preventive monitoring.

Moreover, there was no definite plan or policy regarding its duration. Other, lessprivacy intrusive means or overt monitoring could have been considered instead.
Accordingly, the Commissioner found that the monitoring was carried out in an
unreasonable and unfair manner.43
In a subsequent case,44 the Commissioner also found that surreptitious recording was
inappropriate in the circumstances. Two employees of a residential estate weredismissed for unauthorised absence from duty after a pinhole camera filmed themlingering for more than an hour in a changing room. The camera had been placed in
the staircase leading to the changing room, its purpose being to monitor employees
and enhance security. No notice was posted in the area being monitored to inform
people that it was under surveillance. The Commissioner did not accept that thecamera was installed on the property for security purposes, because it was covert
rather than overt. The Commissioner also found that the collection of information
about the employees without their knowledge was unfair in the circumstances, and sobreached the collection principle.45 The employer had no privacy policy on employee
monitoring, and so employees would not reasonably expect to be monitored by ahidden device. The Commissioner commented that “[c]overt monitoring is generally
regarded as highly privacy intrusive. Employers should not adopt covert monitoring
unless it is justified by the existence of special circumstances and reasons.”46
The Commissioner stated that, even if the employer suspected employees ofdereliction of their duties, the lack of seriousness of their misconduct did not justify
the highly privacy intrusive measures taken. Other, less privacy intrusive means wereavailable, such as a surprise check. If it was considered that monitoring devices werenecessary, overt rather than covert ones would achieve the same result.
Collecting Information from Workplace Computers
Accordingly, there was a breach of Data Protection Principle (DPP) 1(2) (“Purpose and manner ofcollection of personal data”). Moreover, there was also a breach of DPP 5 (“Information to begenerally available”) because of the lack of an employee monitoring policy.
44
Office of the Privacy Commissioner for Personal Data (HK) R12-4839 (14 February 2012).
45
DPP 1(2).
46
At [32].
43

46

New Zealand Journal of Employment Relations, 42(1): 36-57
There are a few employment law cases involving the collection of information fromworkplace computers by employers, but the Privacy Act plays no significant role, ifany, in these. Such cases tend to turn on the justifiability of subsequent disciplinary
action. There are no privacy rights per se in respect of employees’ workplace email orother internet use, but the justifiability in terms of employment law of any
disciplinary action for misuse may turn on whether the employee had a reasonable
expectation of privacy in the circumstances, and other factors. For example, there
have been cases that turned on whether there had been employer training and policies
regarding internet use,47 the nature of the use (messages containing sexual innuendos
and surfing the net for pornography being particularly frowned upon), 48 the length ofservice,49 and rights of free expression during industrial negotiations.50 The emphasis
has been on fairness and due process, rather than reliance on the Privacy Act.
One could raise the technical issue of whether an employer who gathers information
about an employee’s internet use is actually “collecting” information in strict terms of
the Privacy Act. This is because the employer already “holds” this information in its
computer system, which is a prerequisite for the use and disclosure of it. Much
information will also likely be “unsolicited” information (and so it falls outside theAct’s limited s 2 definition of “collect”).51 Therefore, the rules relating to individual
notification (principle 3), and the requirement that the retention, use and disclosure ofsuch information must relate to the original purpose for collecting it, do not apply.
Any rights that an employee has in this area in respect of the collection of personal
information therefore arguably stem from employment law, not from the Privacy Act,
which technically may not apply.
A Privacy Commissioner’s case note on the collection of personal information from aworker’s computer by means of monitoring software proceeded on the basis that theemployer was indeed “collecting” the information in terms of the Privacy Act.52 The
monitoring took place in the context of an employment investigation, and theinformation collected included emails sent to and from the computer, and key-stroke
logs for the computer. The key-stroke logs were used to access the worker’s personal
web-based email account, and several emails were copied. The Commissioner dealt
separately with the information collected directly from the work computer, and theinformation collected from the worker’s personal email account. The Commissioner
considered that the collection of information directly from the work computer did notbreach the Privacy Act, since computer monitoring was provided for in both theemployment agreement and work rules.
One matter that was not covered, however, was notification that detailed information
was being collected through key-stroke logging, and this was a breach of the Privacy
Act collection principle that requires making an individual aware of the fact that
information is being collected (principle 3(1)). The Commissioner also found that theemployer’s use of the worker’s password through key-stroke logging to gain access to
the worker’s personal email account breached the Privacy Act collection principles.
The access to a significant number of emails sent over a number of years “was47

Clarke v Attorney-General [1997] ERNZ 600 (EmpC).
Clarke, above n 47; Allerton and Offord v Methanex (NZ) Ltd WC 23/00 (EmpC).
49
Clarke, above n 47.
50
Howe v The Internet Group Ltd (IHUG) [1999] 1 ERNZ 879 (EmpC).
51
The definition of “collect” excludes unsolicited information.
52
Case Note 229558 [2012] NZPrivCmr 1.
48

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New Zealand Journal of Employment Relations, 42(1): 36-57
unnecessary and disproportionate to the employer’s needs”;53 and workers were notnotified that the employer could use key-stroke logging to obtain their passwords tocollect further personal information about them that was not held on their work
computer.54 Moreover, given that there was a high expectation of privacy in a
password-protected account, “it would require exceptional circumstances to justify an
employer directly accessing it”. As there were no such circumstances in the present
case, “this method of collection was unreasonably intrusive”.55 This complaint was
subsequently settled through mediation.
Another Privacy Act case,56 decided in the Tribunal, concerned an employer who
pressured an employee to access Facebook so that a screenshot could be taken of aphotograph taken and uploaded by a former employee that was insulting to thecompany. The Tribunal did not deal with any issues relating to the collection of thisinformation because the complainant’s case on this point was “bound to fail” because
she would not have been able to prove a causal connection between the alleged
breaches of the collection principles and the eventual harm she suffered when theformer employee’s photograph was disclosed to local employment agencies, harming
her chances of finding employment.57 This was a surprising finding, since, but for thecollection of the information, it could not have been subsequently disclosed.
In a Hong Kong case,58 a worker complained that her employer logged into her
computer to collect cookies without notifying her. She had been assigned a username
but was able to set her own password. The complainant’s supervisor asked for her
password for “emergency use”. The supervisor later found that she used the computer
to play online games during work hours, and the supervisor collected her browsing
history (the cookie data). The Commissioner first found that the cookies contained
personal data about the complainant, since they contained her name and the websites
browsed by her. The Commissioner went on to find that, since the cookies wererecords gathered by the supervisor to determine whether or not the complainant was
breaching work rules, there had been a collection of her personal data by thesupervisor. The Commissioner found that the collection of information in thecircumstances was unfair,59 noting that “[t]he employer had not taken any practicalmeasures to stop or prohibit the Complainant from using the Computer for private
purposes or storage of private data.” The complainant had a reasonable expectation ofprivacy, given that passwords were private to employees. The supervisor’s use of thepassword was therefore inconsistent with the professed reason for asking for it, which
was for “emergency use”. Consequently, the Commissioner issued an enforcement
notice to stop the employer using employees’ passwords to log into their computersand collecting employees’ browsing histories unless the employer had their priorconsent. The Commissioner also found a breach of the openness principle,60 in thatthe employer:
53

There was therefore a breach of principle 1.
There was therefore a breach of principle 3.
55
There was therefore a breach of principle 4.
56
Hammond v NZCU Baywide [2015] NZHRRT 6.
57
At [133]. In the result, the former employee was awarded $168,000 for this harm, the amountstemming from the employer’s disclosure of the information (under principle 11), but not from thedubious manner it was collected in the first instance.
58
Office of the Privacy Commissioner for Personal Data (HK) Case No 2006C14 (September 2010).
59
In breach of DPP 1(2).
60
DDP 5 (“Information to be generally available”).
54

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New Zealand Journal of Employment Relations, 42(1): 36-57…had not taken all the practicable steps to ensure that the Complainant wasaware of the policy and practices of the Organization on recording employees’browsing history in its computers.

Collection of Workers’ Bodily Substances
With the testing of bodily substances, one encounters a conceptual difficulty: arebodily fluids and cells “personal information”, or are they merely, and literally,
disembodied data that, when analysed scientifically, yield personal information, but
are not personal information themselves? Accordingly, unless legislation specifically
includes bodily substances in the definition of “personal information”, the notion
becomes contestable.61 Thus, for example, the New South Wales Privacy andPersonal Information Protection Act 1998 includes “bodily samples” in its definitionof “personal information”.62
The New Zealand Privacy Commissioner has opposed random drug testing in theworkplace,63 but there have been no published Privacy Act complaints on the issue.64
Assuming that collecting a bodily sample such as urine would amount to thecollection of “personal information”, the testing would have to be for a lawful
purpose connected with a function or activity of the employer and necessary for that
purpose (principle 1), and it would have to be carried out fairly and without intruding
unreasonably into the individual’s personal affairs (principle 4). For better or worse,
workplace testing can generally be viewed as reasonably necessary by employers
insofar as it ostensibly addresses productivity and health and safety issues. Moreover,in principle at least, testing is a consensual activity, despite the likelihood that an
unreasonable refusal to undergo testing will mean losing one’s employment.
The permissibility of drug and alcohol testing in New Zealand has turned on
employment law rather than privacy law. Unless specifically provided for in an
employment agreement,65 however, an employer would be faced with real difficulties
For discussion of the issue, see Lee Bygrave “The body as data? Reflections on the relationship ofdata privacy law with the human body” (conference paper, Office of the Victorian Privacy
Commissioner, Melbourne, 8 September 2003); Bruce Alston “Blood rights: the body and information
privacy” (2005) 12(4) J Law Med 426; Rohan Hardcastle Law and the Human Body: Property Rights,
Ownership and Control (Hart Publishing, Oxford, 2007) at 98.
62
In Norway, on the other hand, which lacks such an inclusive definition, samples were found by the
Norwegian Data Protection Tribunal not to be “personal data” under the Personal Data Act 2000 on
appeal in Case 8/2002: see Bygrave, above n 61, at n 104.
63
Bruce Slane “The Privacy Implications” in Drug Testing: The Sporting Experience: the Employment
Possibility (Legal Research Foundation, Auckland, 1995) 89, and “Critical Privacy Issues for
Employers and Employees” (Address to Industrial and Employment Relations’ 10th Annual
Conference, 19 March 1996).
64
For discussion of how the Privacy Act might apply, see John Edwards “Workplace drug testing”(1995) 1(1) HRLP 43; Michael Webb “Workplace drug testing: Another perspective” (1995) 1(3)HRLP 131; John Edwards “Privacy Updates – Notes on Recent Developments” (1996) 1(4) HRLP 187
at 187–188; Cordelia Thomas “Drug Testing in the Workplace” (1997) 22(2) NZJIR 159; and Paul
Roth “The Privacy Act 1993: Workplace testing, monitoring, and surveillance” (1997) 3(2) HRLP 113.
65
In an early case concerning the legality of testing, a collective agreement providing for unrestricted
random testing was found by the Employment Court to be “harsh and oppressive” under now-repealed
industrial legislation: Harrison v Tuckers Wool Processors Ltd [1998] 3 ERNZ 418. The Employment
Court found that clauses providing for random drug and alcohol testing, as well as medical
examinations, were harsh and oppressive in terms of s 57 of the Employment Contracts Act 1991
insofar as they related to giving consent in advance, and the relevant clauses were struck out. On
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New Zealand Journal of Employment Relations, 42(1): 36-57
if an employee refused to submit to a test, particularly random testing where there is
no reasonable cause for conducting it in the first place. The employer cannot
physically compel the worker to undergo testing, and could only take disciplinary
action if a refusal to be tested was unreasonable in the circumstances. If the employer
decided to dismiss the worker, the issue would then become whether or not theemployer was substantively and procedurally justified in doing so. The Privacy Act
does not provide any guidance as to what would be fair and reasonable in suchcircumstances. Like employment law, it simply requires that any collection of
personal information be reasonably necessary and undertaken in a fair and reasonable
manner.66 The only thing added by the existence of the Privacy Act is the backgroundof upholding the societal value of an individual’s freedom from unreasonable
intrusion into his or her personal affairs unless there are sufficiently important
countervailing considerations.
In an interim injunction case where the employee sought reinstatement pending
substantive determination of his unjustifiable dismissal case,67 the Employment Court
considered drug testing to be prima facie acceptable if it was carried out in aprocedurally fair manner and in a safety-sensitive context. The Privacy Act was notcited. In the absence of a contractual entitlement to require testing, it is more common
for employers to carry out tests on job applicants rather than on current employees.
The issue of permissibility when introducing a drug and alcohol testing regime forexisting workers was first determined by the Employment Court in 2004, 68 when thefull Court found that an employer would be justified in introducing such a regime
where health and safety were legitimate concerns. While the Court cautioned that its
findings were specific to the case at hand, the points on which the case turned, andthe conservative conclusions reached, could be easily generalised.
Air New Zealand wanted to introduce a drug and alcohol policy into the workplacethat included provisions for testing existing employees. The six plaintiff unions
sought a permanent injunction and declarations restraining the implementation of theannounced policy. Among the causes of action raised were that the policy constituted
an impermissible unilateral variation of the employees’ existing employment
agreements, and that the requirement to submit to testing was both unreasonable andunlawful because the provision of bodily samples in such circumstances breached the
New Zealand Bill of Rights Act 1990, the Privacy Act, and the Human Rights
Act 1993.

appeal to the Court of Appeal, the case was remitted to the Employment Court to be reconsidered inlight of the criticism that the lower court failed to refer in its judgment to “statistical, research or otherempirical material in support of the proposition that particular terms of the contract are or are not‘harsh and oppressive’”: Tucker Wool Processors Limited v Harrison [1999] 1 ERNZ 894; [1999] 3
NZLR 576 at [79]. Upon reconsideration on this basis, the Employment Court found that therequirement to undergo drug and alcohol testing on an undefined fair and reasonable basis was among
a number of provisions which in combination rendered the contract “exceptionally burdensome”:
Harrison v Tuckers Wool Processors [2000] 1 ERNZ 572 at [63]–[64]. The Court commented thatsome of the provisions “could only have provided the satisfaction of exercising domination over the
persons of others.” The issue by that stage, however, was academic, as the company had gone out ofbusiness.
66
Principles 1 and 4 respectively.
67
Philson v Air NZ Ltd AEC 35/96, 3 July 1996.
68
NZ Amalgamated Engineering Printing and Manufacturing Union Inc, above n 16.

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New Zealand Journal of Employment Relations, 42(1): 36-57
None of these contentions were upheld. The dominant considerations in this casewere the employer’s statutory and common law obligations in respect of workplace
health and safety. These, together with its right to manage, empowered the employer
to promulgate relevant policies. The Court considered that testing was permissible in
the following circumstances contemplated by the policy:69






On reasonable cause to suspect that an employee’s behaviour is an actual or
potential cause or source of harm to others as a result of being affected byalcohol or drugs or both;
On internal transfer to safety sensitive occupations (by analogy with preemployment testing);
In post-accident / incident / near miss situations; andIn random testing in safety sensitive areas only, not across the board.

The issue for subsequent cases, therefore, is what constitutes a “safety sensitive”
activity, as many jobs involve potential hazards of one kind or another. The Court
acknowledged that defining what constituted a “safety sensitive” area was in itself
problematic in the case at hand. It commented that the “exercise of defining it ... is
not one for the Court to undertake”, but for the employer to discharge in consultation
with the plaintiff unions.70 Although the Court’s reluctance to become involved insuch an issue is understandable, it is uncertain how this aspect of the case can betransposed to other enterprises or industries in different circumstances. The Court’s
approach to the permissibility of testing, however, should not mean that it will be asimple matter of justifying testing on real or imagined health and safety concerns.
Considerable work and administrative commitment underlay Air New Zealand’s
introduction of its policy. Air New Zealand was able to satisfy the Court that thescope, means, and rationale of its testing policy were fair and reasonable, with the
exception of random “suspicionless” testing of employees employed outside safety
sensitive areas.71
In a subsequent case on workplace drug and alcohol testing,72 the Employment Court
held that the employer’s intended introduction of a drug and alcohol policy would notbreach collective and individual agreements covering union members and would beotherwise lawful. Such testing policies “must meet the twin tests of lawfulness andreasonableness if they are to be enforceable.”73
Drug testing in Hong Kong has mainly been an issue in relation to testing in schools
and by the Police. Workplace drug testing appears not to be an issue, and there is no
information about it on the Privacy Commissioner’s website. In one case,74 an
employer required its female employees to submit to a DNA test after discovering
menstrual bloodstains in the female toilet. The employer wished to find the woman
responsible and deter a recurrence. The employer proposed to match the DNA test
results against the bloodstains found in the toilet. An employee who felt humiliatedby being required to undergo such a test complained to the Privacy Commissioner,
who upheld her complaint on the basis that the collection of information was neither69

At [254].
At [255].
71
At [262].
72
Maritime Union of New Zealand Inc v TLNZ Ltd [2007] ERNZ 593 (EmpC).
73
At [126].
74
Office of the Privacy Commissioner for Personal Data (HK) Case No 2004C01.
70

51

New Zealand Journal of Employment Relations, 42(1): 36-57
necessary nor reasonable (DPP 1(1)). Such a collection was highly privacy invasive
and was only justifiable in serious circumstances, such as in a criminal investigation.
In a recent United States District Court decision,75 an employer was found guilty ofbreaching the Genetic Information Nondiscrimination Act 2008 (GINA) for illegally
DNA testing employees in order to ascertain who was defecating in the company’s
warehouse during particular shifts.76 The Act prohibits employers from using an
individual’s genetic information for employment decisions such as hiring, terminationand promotions, or health insurance coverage. The DNA was collected through cheekswab samples. Two of the workers, who had tested negative, sued the company forbreach of the GINA. The jury awarded the defendants $250,000 and $225,000
respectively for emotional harm, as well as $1.7 million in punitive damages because
the company “acted with malice or with reckless indifference to the Plaintiff’s
federally protected rights”.77 The case seems somewhat unusual in that the DNA
testing was not used to discriminate against the plaintiffs in relation to any
employment decisions, and in fact the testing cleared them of any wrongdoing. Such
testing might well be lawful in New Zealand, on analogy with drug testing, whereas it
might well not be permitted in Hong Kong, on analogy with the DNA testing
complaint above.
Use of Biometrics
There is one case where the Privacy Commissioner investigated but rejected a unioncomplaint about the introduction of finger-scanning technology for an employer’s
payroll system.78 The union claimed that a system of time sheets and clock cards was
sufficient, and that the introduction of the new system, associated with criminal
activity, was “overkill”. The company claimed that a scanner had become“necessary” in terms of the collection principle due to employee dishonesty incompleting time sheets (principle 1). The Privacy Commissioner found that thecollection of information through finger-scanning was necessary for the company’s
purposes in the circumstances.
The union also alleged that the use of finger-scanning technology for hospitalcleaners involved an unlawful, unfair, or unreasonably intrusive means of collecting
information (principle 4). In particular, the union pointed to the absence of any
express or implied term in the employment contract requiring employees to consent
to the physical contact involved in having their fingers measured by sensors. The
Privacy Commissioner did not find the proposal to be unfair or unreasonably
intrusive, even though he declined to consider the contractual issue. The
Commissioner held that this issue fell squarely within the jurisdiction of the specialist
employment law institutions, and remarked that “[i]t would have been quite improperfor me to usurp the role of the Court by dealing with the matter.” Given that thecollection principle requires agencies not to collect personal information “by75

Lowe and Reynolds v Atlas Logistics Group Retail Services 102 F Supp 3d 1360 (ND Ga 2015).
This apparently is not a unique type of occurrence. For a similar problem at the Denver office of theFederal Environmental Protection Agency, see Eric Katz “EPA Employees Told to Stop Pooping in
the Hallway” (25 June 2014) Fedblog <www.govexec.com>.
77
Lowe and Reynolds, above n 75.
78
Case Note 33623 [2003] NZPrivCmr 5. Similar complaints about finger scanning were also rejectedby the Canadian Privacy Commissioner (PIPED Act Case Summary No 185 (2003)) and the Irish Data
Protection Commissioner (Case Study 1 (2005)).
76

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New Zealand Journal of Employment Relations, 42(1): 36-57
unlawful means”, the refusal to consider whether or not the collection of informationin this case was going to be carried out in breach of the employees’ contracts
amounted to a concession to the employer, who ought to have borne the burden of
proof. In effect, the Commissioner endorsed the lawfulness of the practice under thecontract by declining to consider whether or not it was unlawful.
The union fared better before the Employment Court.79 The Court found that the
introduction of finger-scanning was unlawful in the circumstances because theemployer breached contractual and statutory requirements to consult the employees
concerned. The employees objected to having their fingerprints scanned, and advisedthat they would not comply until the dispute was resolved. The company maintainedthat its direction to the employees was lawful, and it sought a declaration to that
effect. The Court found that the employees concerned were not breaching theircontracts because the instructions they had been given were themselves unlawful. The
Court held that the employer had a statutory good faith obligation to consult onchanges in workplace practices.80 The Court remarked that the requirement ofconsultation will depend on the context. The context here — and this was the key
factor upon which the case turned — was that most of the nearly 50 employees
concerned were Samoan. The evidence indicated that these particular workers
regarded the introduction of the new technology as culturally offensive because it
implied that, like criminals, they were not to be trusted. Expert evidence wasintroduced to show that the technology raised issues relating to Samoan beliefs
concerning the sacredness of parts of the body and the concept of Va Fealoia, “thesacred space which governs and manages all relationships between people including
employers and employees.” The Court also noted that the legislation requires
employers in the public health sector to be “good employers”.81
The wider applicability of this case should be approached with some caution insofar
as the Court's reliance upon contractual and statutory obligations is concerned. In
particular, the case draws no clear line between workplace matters about which an
employer is required to consult, and those which it is not. The Court also set out anumber of broad propositions for determining the lawfulness of the introduction of
new technologies into the workplace:82
1. Is the technology compatible with the contractual obligations of the parties?
79

OCS Ltd v Service and Food Workers Union Nga Ringa Tota Inc (2006) 3 NZELR 558. An earlier,
lower level Employment Relations Authority case found the use of finger-scanning was permissible,
against the objection of an employee. This was on the basis that the employee’s contract provided that
he was required “to complete all time and wage records as required by the Company.” This was held to
be wide enough to encompass a finger scanning system: PMP Print Limited v Barnes ERA Auckland
AA317/04, 28 September 2004. Among the employee’s arguments was that use of the technology
would result in his being stamped with the Mark of the Beast, as referred to in the biblical Book of
Revelations, with the result that he would not be able to participate in the Rapture. The Authority,
however, rejected this indirect discrimination argument. Among other things, the Authority noted thatthe technology does not actually stamp a mark on a person, or even store the image of a fingerprint; itmerely stores a mathematical representation.
80
Employment Relations Act 2000, s 4(1A)(b) requires “parties to an employment relationship to be
active and constructive in establishing and maintaining a productive employment relationship in which
the parties are, among other things, responsive and communicative”.
81
Employment Relations Act, sch 1B, cl 5. There was also a specific statutory requirement (via the
New Zealand Public Health and Disability Act 2000, s 6(1) and the Crown Entities Act 2004, s
118(2)(f)) to recognise “the cultural differences of ethnic or minority groups”.
82
OCS Ltd, above n 79, at [95].

53New Zealand Journal of Employment Relations, 42(1): 36-57
2. There is to be a balance between the need for the technology and the level of
personal intrusiveness involved for the individual concerned.
3. The employer has the right to introduce different systems of timekeeping
technology subject only to reasonable consideration of valid concerns raisedby the union and / or employees.
4. The employer must take the appropriate steps to inform employees of the newmeasures and to obtain their consent.

These principles were distilled from a number of overseas cases determined in avariety of contexts and under different legal regimes, and so their applicability to
New Zealand employment law would need to be determined on a case-by-case basis.
In contrast to the position in New Zealand, Hong Kong privacy law is stricter in its
approach to finger-scanning. In one case,83 finger-scanning was introduced for timekeeping and ensuring office security. The Privacy Commissioner found the collectionof personal data to be unnecessary and excessive.84 This was on the basis that theemployer failed to provide sufficient information to help employees understand theadverse impact on their privacy, and failed to implement adequate mitigating
measures in relation to the system. The Commissioner observed that there had to betrue consent, with no undue influence,85 and stated:
In situations where disparity of bargaining power exists, such as in an employeremployee relationship, any presumption of undue influence exerted on the partof the employer can be dispelled by the provision of genuine choices to the data
subjects before they decide to provide their personal data.

No true consent had been obtained in the present case. A presumption of undue
influence due to an employment relationship had not been rebutted; there was no freechoice for employees to decline to provide their fingerprints to the employer;
employees were not informed of the purpose of collection or of the availability ofalternatives; and no balanced view was presented to employees to enable them tomake an informed choice as to whether or not to provide their fingerprints to theemployer.86
Similarly, in another case,87 the Commissioner found that an employer’s fingerprint
scanning system constituted an unnecessary, excessive and unfair collection of
personal information.88 The complainant was a furniture installer and he wassurprised that the employer collected and recorded his fingerprint data. The employer
explained that it was for recording staff attendance. The employee apparently
complained after he left his employment. The Commissioner found that there wereless privacy intrusive options, such as passwords, available to the employer. Since
there were 400 individuals subject to the system, there was a higher privacy risk due
to possible breaches of information security. Because the employer could not reassure
83

Office of the Privacy Commissioner for Personal Data (HK) Case No 2008C04 (February 2009).
In breach of DPP 1(1).
85
The Privacy Commissioner referred to his publication on the topic, Personal Data Privacy:
Guidance on Collection of Fingerprint Data (Office of the Privacy Commissioner for Personal Data
(HK), May 2012), available at <www.pcpd.org.hk>.
86
In the result, the Privacy Commissioner did not issue an enforcement notice because the employer
subsequently offered its employees a less privacy intrusive alternative in the form of a password.
87
Office of the Privacy Commissioner for Personal Data (HK) R09-7884 (13 July 2009).
88
In breach of DPP 1(1) and (2).
84

54New Zealand Journal of Employment Relations, 42(1): 36-57
the Commissioner as to security concerns, the Commissioner found that there was alikelihood of accidental access or misuse of data. Moreover, the employees were notgiven sufficient information to form an informed choice as to whether or not toconsent to the finger-scanning. There was also an evident element of informational“overkill”, since there were also surveillance cameras to monitor against fraud in staff
attendance. In addition, the Commissioner noted the disparity of bargaining power inthe circumstances, which meant there was no freely given consent by the employees.
The employer simply expected employees to cooperate by accepting the system
without being offered an informed choice. Employees were threatened withimmediate dismissal for failure to cooperate. The Commissioner observed that thescanning was merely for the employer’s own administrative convenience, which
could not justify such a compulsory collection of data. As a result, the Commissioner
issued an enforcement notice to stop the collection of personal data in breach of thecollection principles.
Wearable Devices
The new frontier of employment surveillance is the use of wearable devices. These
devices measure or monitor bodily functions or activities, and have moved from mere
consumer gimmicks for the health-conscious to being deployed for monitoring andmaximising workers’ health and performance. Some incorporate GPS systems to
make monitoring of movements more precise, others have cameras to record what thewearer is doing or seeing. Blood glucose sensors are able to monitor eating habits.
They can also measure sleep patterns. New developments are making wearable
devices more useful and pervasive for a variety of workplace purposes, ranging frommonitoring worker movement and conduct, monitoring and improving worker healthand safety, picking up personal and environmental stressors, and performance
optimisation.
For example, Fitbit is a company that manufactures a number of different wearables
that can track activity, such as the number of steps walked, the quality of one’s sleep,
the number of steps climbed, and other personal metrics. This information can be
combined with other information about the user to calculate distance walked, calories
burned, heart rate, floors climbed, and activity duration and intensity. It can alsomeasure sleep quality by tracking periods of restlessness, how long before the wearer
falls asleep, and how long they remain asleep. These devices can be clipped to thewearer’s clothing or worn as a bracelet. In one study, staff could be classified into
two groups based on their shared patterns of behaviour: “busy and coping” and“irritated and unsettled”.89 Employers have been using such devices to “nudge” staff
towards healthier lifestyles (particularly if they are contributing to their employees’
health insurance),90 and there can be incentives if certain activity targets are met. One

Sarah O’Connor “Wearables at work: the new frontier of employee surveillance” (8 June 2015)
Financial Times <www.ft.com>.
90
For example, CVS Pharmacy in the US requires its 200,000 employees on health plans to submit
their weight, body fat, glucose levels, and other health information or else pay a monthly fine of $50 tocover higher health insurance premiums: see Steve Osunsami “CVS Pharmacy wants workers’ healthinformation, or they’ll pay a fine” (20 March 2013) ABC News <www.abcnews.go.com>.
89

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New Zealand Journal of Employment Relations, 42(1): 36-57
of Fitbit’s strategic goals is to penetrate this “corporate wellness market”.91 One
advertised feature is that:92
Employers who buy from Fitbit have the option of tracking their staff right down
to the individual level, if staff agree to share their data, or just in aggregate. In
other words, they can choose to see how many steps Bob in accounting is taking
each week, or just how active the seven people in accounting are.

While promoting health and safety is one use of such devices, they can also be used
to improve productivity or enhance performance. These functions inevitably meanthat the information collected by the devices is to be accessed by the employer. They
can be used to eliminate “sickies” if the employer is able to examine informationcollected by the device over the period that the employee claimed to be ill.93
Employer use of such devices in some circumstances, however, may lead toemployees “gaming the system”94 through attempting to trick the technology by
giving the wearable to someone else to wear who could produce the desired statistic,
or by taking substances to produce a particular result. Wearables may also distractfrom productivity as employees become more concerned with producing favourable
numbers. Wearables will normally require the employee’s consent or cooperation.
They can be perceived as highly invasive, and workers may well resent the constantmonitoring that wearables involve.
Linking behaviour and physiological data collected from wearables to analytic tools
can give employers in some industries an “edge”, all else being equal. This area isknown as “physiolytics”, which is defined as “the practice of linking wearable
computing devices with data analysis and quantified feedback to improve
performance.”95 For example, a recent article has reported that some of the big hedge
funds have been working to link physiological data to trading success. 96 As withathletes, such factors as diet and sleep can affect one’s performance. Moreover, somehormones, such as naturally produced steroids and testosterone, can increase aperson’s confidence and encourage risk-taking behaviour, while stress hormones suchas cortisol have the opposite effect. John Coates, a neuroscientist and former
Goldman Sachs trader, is working with companies to link such biological signs to
trading success. He has observed that:
You need to figure out whether you should be trading or whether you should go
home. If you are trading, should you double up your position because you’re in
the zone?…A lot of smart managers think their algos have gone as far as they
can go. The next step is human optimization.

See, for example, Parmy Olson “Fitbit on track to sell thousands more devices through Barclays,
GoDaddy and other employers” Forbes (online ed, America, 20 October 2015).
92
Olson, above n 91.
93
Chloe Taylor “Wearable devices: the future of management?” HRM New Zealand (online ed, 15June 2015).
94
O’Connor, above n 89.
95
H James Wilson “Wearables in the Workplace (2013) Harvard Business Review (online ed, Boston,
September 2013).
96
Olivia Solon “Why your boss wants to track your heart rate at work” (12 August 2015) Bloomberg
Buisiness <www.bloomberg.com>.
91

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New Zealand Journal of Employment Relations, 42(1): 36-57
The workplace privacy implications of such devices are obvious, 97 chief of which iswhether or not the employee should be allowed to withhold consent to wearing suchdevices without any adverse repercussions. Furthermore, such devices will havesecurity vulnerabilities. One commentator has remarked that “your personal data
security is only as strong as the weakest link in your quantified ecosystem.”98

Conclusion
There are three principal conclusions that follow from examination of the applicationof privacy legislation to the workplace. One is that such legislation is most importantfor providing employment law with a source of accepted standards of what society
regards as fair and reasonable in relation to the handling of workers’ personal
information and their expectations of privacy. Secondly, it is clear that theeffectiveness of privacy regulation as a control over employer practices very muchdepends on the particular country’s data protection authority and the strictness withwhich it, and the legal forums above it, approach the interpretation and application ofprivacy law. Thirdly, the world is going to see more, not less, technologicalinnovation that will have workplace applications, and so it behooves lawmakers andofficials to actively defend and strengthen workers’ human rights to privacy against
managerial encroachment.
The modern day motivation for collecting personal information about workers can betraced back to the ‘scientific’ management techniques of Frederick Winslow Taylor
at the turn of the last century. Underlying much of the perceived need for increased
supervision was mistrust of the likelihood of workers doing an honest day’s work.
The current pairing of this outdated management attitude with increasingly
sophisticated means of monitoring workers has resulted in a serious workplace
imbalance. Meaningful regulation of this diabolical partnership – negative attitudes
towards workers combined with technological advances – is not in prospect. Added
to this mix has been the relatively recent extension of the common law duty offidelity to capture worker conduct beyond the bounds of the workplace when what aworker says or does can be labelled as reflecting badly on the employer’s business.
The difference between today and Frederick Taylor’s times is that the right to privacy
enshrined in human rights instruments did not exist then, nor did the technologicalability to monitor workers to the same pervasive degree.

97

See International Working Group on Data Protection in Telecommunications Working Paper on
Privacy and Wearable Computing Devices (Doc No 675.50.15, 57th meeting, Seoul, 27-28 April2015), available at <www.datenschutz-berlin.de>; Research Group Report Wearable Computing:
Challenges and Opportunities for Privacy Protection (Office of the Privacy Commissioner of Canada,
January 2014), available at <www.priv.gc.ca>.
98Michael Carney “You are your data: The scary future of the quantified self movement” (20 May
2013) PandoDaily <www.pando.com>.

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New Zealand Journal of Employment Relations, 41(2): 58-70

A Bad Day at the Sausage Factory: The Health and Safety at Work Act
2015
JEFF SISSONSAbstract
This paper outlines key concerns relating to New Zealand’s new Health and Safety at Work Act 2015. It puts
the Act in context as the most recent governmental attempt to reform health and safety in the workplace. The
reports of the Independent Taskforce and the Royal Commission provided an opportunity to address New
Zealand’s poor workplace health and safety record, however the Government has failed to do so effectively.
This paper identifies significant issues with the Act, particularly with regards to worker participation and theuse of work groups to push for change.

Key words
Health and Safety at Work Act 2015, health and safety, labour law, worker participation, workgroups.
Those who believe in justice and those who love sausage should never watch either being made. 1

Introduction
A casual observer of the progress of the Health and Safety Reform Bill may have been surprised by
the abrupt fracturing of the cross-party and cross-industry consensus supporting the Bill as it madeits way back from the Transport and Industrial Relations Committee.
The Bill passed its first reading on 13 March 2014 with the support of all parties. By the second
reading on 30 July 2015, the Labour, Green and New Zealand First parties had withdrawn theirsupport for the Bill. The New Zealand Council of Trade Unions (CTU) and affiliated unions
launched a significant nationwide campaign to push for change in the Bill in concert with thefamilies of workers killed at work (including those who lost loved ones working at Pike River Mineand in the forestry industry).
Despite the disquiet and dissent, the Bill passed into law as the new Health and Safety at Work Act
2015 (the Act) and a series of major amendments to other existing pieces of legislation. Most of the
key provisions came into effect on 4 April 2016 and there will be significant work to complete
supporting regulations and guidance in the meantime.
The purpose of this paper is to explain the CTU’s most fundamental concerns with the new Act. It is
important to acknowledge at the outset that legal change is not a panacea for the dismal state ofhealth and safety practice in New Zealand. If New Zealand is to lift its performance we must also
tackle fundamental deficits in knowledge, culture and power. However, good regulation should
provide the framework that brings about the change needed for a positive health and safety culture1

General Counsel, New Zealand Council of Trade Unions – Te Kauae Kaimahi.
Otto von Bismarck (attributed).

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New Zealand Journal of Employment Relations, 41(2): 58-70
and, conversely, badly-made law can hinder this cultural change. It is the view of the CTU that the
Act will not deliver the change we need. The evidence suggests there is a problem.
This paper explains why changes made by the new Act to existing health and safety legislation some
substantially compromise its effectiveness.2 Before addressing these concerns it is useful to begin
with a reminder of how New Zealand arrived at its current health and safety position and theingredients that have gone into the new Act.

The Pike River Tragedy and Aftermath
On Friday 19 November 2010, a methane explosion occurred at the Pike River Coal Mine on theWest Coast of the South Island. 29 men were trapped in the mine by the explosion, condition
unknown. Following a second explosion five days later, all were presumed dead. Their bodies havenever been recovered.
The Royal Commission on the Pike River Coal Mine Tragedy was convened and found major flaws
in the performance of the regulator and the operation of the Health and Safety in Employment Act
1992. The Royal Commission said that “major change [is] required and fast” and that “administrativeand regulatory reforms are urgently needed to reduce the likelihood of further tragedies.”3
The report’s findings regarding the regulatory failings led to the then-Minister of Labour, Kate
Wilkinson, resigning her ministerial warrant. The Royal Commission identified two particular
weaknesses in the Health and Safety in Employment Act 1992: weak legal duties for directors toensure health and safety and weak worker participation.
While the Royal Commission was investigating, the Government convened an expert taskforce toresearch, investigate and hear submissions on issues regarding New Zealand’s workplace health andsafety performance. The Independent Taskforce on Workplace Health and Safety (the Taskforce)was chaired by the Chairman of Shell Oil, Rob Jager, and included representatives of businesses,
workers and the agricultural sector.
The Taskforce issued its report in April 2013. The report is a clear-eyed survey of the health andsafety landscape in New Zealand. It is also an indictment. The Taskforce noted that there are around
200,000 claims to ACC each year by people injured at work and that, along with an emotional toll,
the economic, medical and social costs of these injuries may be as high as four percent of GDP. The
Taskforce described this as “appalling, unacceptable and unsustainable.”4
The Taskforce identified 12 key areas of weakness:5
1. Confusing regulation;
2

Given the scope and complexity of the health and safety reforms, this paper only canvasses a small portion of the Act.
For more detail on both the elements of the Act which the CTU supports and other changes, see the CTU submission on
the Health and Safety Reform Bill, available at <www.union.org.nz>.
3
Royal Commission on the Pike River Coal Mine Tragedy Report of the Royal Commission on the Pike River Coal Mine
Tragedy: Volume One (October 2012) at 29.
4
Independent Taskforce on Workplace Health and Safety Main Report of the Independent Taskforce on Workplace
Health and Safety (April 2013) at 4.
5
Independent Taskforce on Workplace Health and Safety Executive Report of the Independent Taskforce on Workplace
Health and Safety (2013) at 11-12. The problems in each area are set out in greater detail at Appendix I.

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New Zealand Journal of Employment Relations, 41(2): 58-70
2. A weak regulator;
3. Poor worker engagement;
4. Inadequate leadership;
5. Capacity and capability shortcomings;
6. Inadequate incentives;
7. Poor data and measurement;
8. Risk tolerant culture;
9. Hidden occupational health;10. Problems in regulating major hazard facilities;
11. Particular challenges to small-to-medium enterprises (SMEs); and12. Weak protections for at-risk populations.
According to the Taskforce, one fundamental weakness underlies all of the others: a lack of
tripartism. To understand the importance of this weakness, it is necessary to revisit the genesis of ourcurrent health and safety system.

Robens-Lite
The conception of New Zealand’s health and safety system (along with those of most other common
law countries) lies in a revolutionary document. Following a series of industrial disasters, the newlyelected Conservative Government commissioned Lord Alfred Robens, the Chairman of the National
Coal Board, to carry out a root-and-branch review of the United Kingdom’s health and safety law. A
Committee on Safety and Health at Work was formed in 1970 and gathered evidence over the next
two years, reporting in July 1972. As Eves notes, the Robens Report recommended theimplementation of “a more self-regulating system” for employers and workers and criticised thecurrent regime’s over-reliance on “prescriptive statutory regulation”.6 It suggested the promotion ofindustry-led health and safety reform through “agreed voluntary standards and codes of practice topromote progressively better conditions” and the regulation of health and safety through one allencompassing statute.7
The Robens model posits a ‘three-legged stool’ consisting of a strong regulator, capable employers
and informed, empowered workers. Each of these ‘legs’ acts as a check and balance upon theeffective operation of the others.
The Robens Report founded the basis for new health and safety laws in the United Kingdom,
Australia, Canada and, eventually, New Zealand by way of the Health and Safety in Employment
Act 1992.
There were problems from the start with New Zealand’s implementation of the Robens principles.
As the Taskforce noted in its report,8 New Zealand’s introduction of the Robens system occurred
later, and constituted a “much lighter version” than in other jurisdictions. The Taskforce concluded
that:
The lighter version reflected a range of local and historical factors.
David Eves “Two steps forward, one step back: a brief history of the origins, development and implementation of healthand safety law in the United Kingdom, 1802–2014” (April 2014) History of Occupational Safety and Health<www.historyofosh.org.uk>.
7
Eves, above n 6.
8
Independent Taskforce Main Report, above n 4, at [66].
660New Zealand Journal of Employment Relations, 41(2): 58-70

a. Resource constraints. The late 1980s and 1990s were a period of fiscal discipline, frozen
budgets and staff cuts across the public sector. No additional funding was made available tosupport a comprehensive implementation of the new Act, including the development of adequatelevels of supporting regulations, approved codes of practice (ACoPs) and guidance, as well as
inspectorate capabilities.
b. Changing attitudes towards the roles of government and business. The HSE Act wasdeveloped in an era of deregulation and a growing ethos of business self-regulation. This
informed low levels of resourcing for and a light-handed approach to regulation, and high levelsof reliance on businesses’ capabilities and commitment.
c. Liberalisation of the labour market and the weakening of union representation. Labour market
liberalisation in the 1980s and 1990s resulted in a sustained fall in union membership and growthin casual, part-time and short-term employment relationships…It is likely that this factor
influenced omissions from the HSE Act, including the failure to establish a tripartite body and to
set obligations requiring employers to have formal worker-participation systems.

The Taskforce attributed weaknesses in New Zealand’s health and safety framework to “afundamental failure to implement properly the Robens health and safety model”.9

What Works in Worker Participation
Both the Royal Commission and the Taskforce singled out worker participation as a crucial weaklink in New Zealand’s health and safety system. The Taskforce noted that, compared to otherjurisdictions, worker engagement in New Zealand “falls well short,” is “generally ineffective andoften virtually absent” and is not well supported by legislation.10
Australia’s Model Act arose out of two reports, both entitled ‘National Review into Model
Occupational Health and Safety Laws.’ The first report quoted and endorsed an earlier review ofAustralia’s health and safety legislative framework called the Laing Review:11…the election of safety and health representatives and the constitution of safety committees arefundamental if genuine consultation is to develop in workplaces. Without the authority provided
under the Act, almost any other consultative approach will result in unequal relationships andconsultation may be one sided or tainted by the incapacity to openly and fearlessly put thenecessary issues for discussion. As a consequence, while there may be considerable talk there
may be little consultation.

Worker engagement is a prerequisite for a well-performing health and safety system. As leading
Australian health and safety experts Johnstone and Tooma note, “workers bear the brunt of theeffects of work related hazards, and should therefore participate in measures to identify and address
hazards.”12 Johnstone and Tooma go on to note that “worker experience and knowledge” ofworkplace hazards assists in the development of better health and safety practices and, further, that9

Independent Taskforce Main Report, above n 4, at [61].
At [93].
11
Robert Laing Review of the Occuptional Health and Safety Act 1984 (WA) (2002) at 155, as cited in Department of
Education, Employment and Workplace Relations National Review into Model Occupational Health and Safety Laws
Second Report (2012) at [25.8].
12Richard Johnstone and Michael Tooma Work Health and Safety Regulation in Australia: The Model Act (Sydney
Federation Press, Sydney, 2012) at 137–138.
10

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New Zealand Journal of Employment Relations, 41(2): 58-70
worker participation in health and safety is necessary to uphold workers’ rights over employers’commercial interests.
The available empirical research suggests that direct participation by means of individual nonunionised employees engaging with managers appears to have little effect on work health andsafety. There are very few studies on the use by individual workers of an individual right torefuse to perform dangerous work, and what research there is suggests that this right is little usedin small firms, where workers inhabit ‘structures of vulnerability’.
There is much stronger evidence on the positive effects of collective worker participation on
work health and safety. This evidence comes from a number of countries, including fromcountries where there is no statutory basis for worker participation. The research shows thatparticipatory mechanisms that enable higher levels of worker involvement are better than thosethat provide for more limited involvement. Many of the studies prove that there is a relationshipbetween objective indicators of work health and safety performance (such as injury rates or
exposure to hazards) in workplaces that have implemented structures for worker participation,such as the presence of trade unions, joint health and safety committees, or union or worker
health and safety representatives. International research supports the argument that joint
arrangements involving employer, worker, and trade union representatives at the workplace areassociated with better work health and safety outcomes than where representative worker
participation is absent. Other studies provide more indirect evidence of the impact of worker
representation on work health and safety management practices, and suggest that participatory
workplace arrangements lead to improved work health and safety management practices andcompliance with work health and safety regulatory standards.
Despite their diversity in terms of method and other details, taken collectively these studies
support the notion that joint arrangements and trade union representation at the workplace areassociated with better health and safety outcomes than employer management of work health andsafety without representative worker participation.

The National Review into Model Occupational Health and Safety Laws Second Report concluded inrelation to health and safety representatives that:13
Overwhelmingly, stakeholders and regulators alike are of the view that provision should be madein the model Act for workers to elect HSRs. The election of HSRs has been a common feature in
OHS legislation for many years and represents contemporary practice. The benefits of effective
representation through HSRs have been demonstrated.

The most complete recent survey of what works in the health and safety representation sphere is a2014 study of the coal mining industry undertaken by four of the foremost experts in health andsafety representation: David Walters, Richard Johnstone, Michael Quinlan and Emma Wadsworth.14

Fear and Loathing in Thorndon
The Health and Safety Reform Bill generated a considerable amount of heat but little light. In this, it
was reminiscent of the previous reforms in 1992 and 2002. Both were characterised by considerable
opposition from employer groups who saw the empowerment of workers in relation to their own
13

Department of Education, Employment and Workplace Relations, above n 9, at [25.19].
David Walters, Richard Johnstone, Michael Quinlan and Emma Wadsworth A study of the role of workers’
representatives in health and safety arrangements in coal mines in Queensland (Construction, Forestry, Mining andEnergy Union: Mining and Energy Division, January 2014) available at <www.cfmeu.com.au>.
14

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New Zealand Journal of Employment Relations, 41(2): 58-70
health and safety generally and health and safety representatives in particular as a stalking horse forthe union movement.
It seemed as though the clear and sobering messages of the Royal Commission and the Taskforce
might temper this opposition. In June 2013, the Business Leaders Health and Safety Forum wrote tosenior cabinet ministers stating:15
Ministers you may wonder if business leaders have concerns about the Taskforce’s
recommendations on worker participation, increased costs and increased penalties. We want toreassure you that our members are not concerned about these recommendations being
implemented as part of a comprehensive and balanced approach.
Evidence tells us that meaningful worker participation (that includes representative unions, where
relevant) is a core requirement for high-performing safety systems. We believe participation
provisions must be flexible, and that checks and balances can be put into place to ensure that they
do not encroach on aspects of the employment relationship unrelated to health and safety.

It appeared that New Zealand was experiencing a rare armistice of agreement on what needed to be
done. The Health and Safety Reform Bill received unanimous support at its first reading on 13
March 2014 and was widely welcomed. However, many of the other submissions strongly resembled
concerns raised in previous attempts at reform.
The Talley’s Group submissions on industrial legislation are well-known for their particular style ofinvective. Peter Talley’s submission on the Bill is particularly notable in this respect. He notes:16
With control of such work groups resting with unions and their members, it is inevitable that they
will use that power to their own advantage both to increase their power and influence and to
make employers fund the Union’s favoured members to undertake union activities under theguise of health and safety. Unscrupulous Unions could also use Sections 66 to 68 to intentionallydamage or destroy a business, by appointing dozens of their members as representatives, havemultiple unnecessary work groups and drive a business to bankruptcy, without an employer
having any recourse.

Mr Talley’s submission meanders on in a similar vein:17
We believe the changes in the Health & Safety legislation will be used by the Union as another
tool to force companies to capitulate to Union desires. eg: during collective bargaining a Union
could use Health & Safety as a tool to tie up the time and resources of company executives, andplace pressure on the company. Due to the importance of Health & Safety and relating issues,companies would have no option but to investigate any claims, frivolous or not, and it would be
difficult to prove that unsubstantiated claims were in essence an act of bad faith on behalf of theUnion. As a result either a great deal of resources are wasted on investigations into unfounded
Health & Safety claims, or, due to repetitive unfounded Health & Safety claims "crying wolf'
mentality sets in and serious Health and Safety issues may be overlooked.

15

Letter from Julian Hughes (Executive Director of the Business Leaders Health and Safety Forum) to Bill English(Finance Minister), Steven Joyce (Economic Development Minister; Tertiary Education, Skills and Employment
Minister) and Simon Bridges (Labour Minister) regarding the Independent Taskforce recommendations (18 June 2013),
available at <www.mbie.govt.nz>.
16
Talley’s Group Ltd “Submission to the Transport and Industrial Relations Committee on the Health and Safety Reform
Bill 2014” at 8.
17
Talley’s Group Ltd, above n 18, at 16–17.

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The Talley Group is also worried that the powers to be given to workers through the creation of
Health & Safety representatives may undermine existing relationships and activities. We see theextended powers as unnecessarily boosting the power of workers unions using the Health &Safety issue as the vehicle for that agenda. We do not believe the Health & Safety Reform Billshould facilitate or encourage that agenda.

It was not only intemperate employers who weighed in against strengthening of worker
representation. Several major employers expressed milder versions of the same sentiments.18
These submissions lacked any empirical evidence to back claims of misuse and abuse of worker
participation and representation systems. We suggest that this may be because there is a strong
international and research consensus on these points. The closest the employers’ submissions cometo engagement with the international research is the EMA Northern submission, stating at [21]:We believe the argument for health and safety representatives has been taken from myth to thepoint of becoming fact. We are often told about research studies which make it clear that healthand safety representatives are very effective within the work places. Following our research thisis not as clear as the myth may portray. Indeed David Walters who is the instigator of health andsafety representatives in the UK, his latest research strongly suggests that there are many
variables within a work place that can assist or detract from the effect of this health and safety
representative thus to say that a health and safety representative as an item alone is effective issomewhat misleading.

Concerned that the EMA’s submission was a misrepresentation of Professor Walter’s work, the CTU
wrote to him enclosing the EMA’s submission and asking for his comment. He responded that the
EMA’s submission had misconstrued his scholarship, since:19[The EMA’s submission] is a misinterpretation of what I have written. The evidence is not myth
– it’s a reflection of reality. There is strong quantitative research evidence to indicate that
establishments with trade union supported health and safety representatives have better healthand safety performance (in terms of both objective outcomes such as improved injury rates and interms of better management arrangements) than workplaces in which employers manage OHS in
the absence of such arrangements. My recent work (including evidence submitted to the Royal
Commission Inquiry on Pike River – and verbal evidence to the Task Force…) has cited anddiscussed this evidence at some length. My discussion of these empirical findings tries to accountfor the conditions – or preconditions that support this success and of course these include otherfactors such as a clear regulatory steer and support for its implementation from state inspectors –as well as managerial commitment to the operation of participative arrangements on OHS – aswell as trained and informed representatives.

MBIE’s Departmental Report on the Health and Safety Reform Bill lacks consistency between
the changes and their justifications. Officials comment that:20
Under the HSE Act, one worker can request an employee participation system, which defaults toan election for HSRs, if after six months there is no agreement between the employer andemployees on the employee participation system. This approach has not led to an overload of
HSRs in businesses where they are not appropriate.
18

Examples from a long list include Air New Zealand, Business Central, Carter Holt Harvey, Federated Farmers,
Fletcher Building, Fonterra, the Meat Industry Association, the New Zealand Forest Owners Association, and Seafood
New Zealand.
19
Email from Professor David Walters to the author regarding the EMA Northern submission on the Health and Safety
Reform Bill 2014 (10 September 2014).
20
MBIE “Departmental Report Part A to the Transport and Industrial Relations Committee on the Health and Safety
Reform Bill 2014” at [179]–[181].

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New Zealand Journal of Employment Relations, 41(2): 58-70

A more flexible outcomes-based approach also creates risk. To effectively implement theTaskforce recommendations and international conventions, there is a need to have minimum
conditions to improve New Zealand’s worker participation practices. It is difficult to design a
flexible approach which allows workers to have a voice in safety, have some workers who
understand health and safety obligations so they can engage effectively, not face unfair
consequences, and be able to act, without this simply looking like a HSR system.
This kind of approach would also be difficult to design and enforce, would provide more
uncertainty for business, and create a greater ability for abuse, at a time when the health andsafety reforms are trying to encourage worker participation and better practices.

Despite this evidence, the Health and Safety at Work Act 2015 takes a substantial step backwards inrelation to worker engagement, representation and participation for the following reasons:







Health and safety representatives are optional for SMEs that are not high risk and may beisolated to small PCBU-determined work groups in all other circumstances (see discussion
below);
Employers have increased powers to push for the removal of health and safety
representatives;
Health and safety committees are optional for all PCBUs;21
There is no requirement to provide training for health and safety committee members;
The default worker participation scheme where agreement cannot be reached is no longer
present; andUnions have a greatly reduced role in the set-up of the system, the election of health andsafety representatives and the assistance of workers.

Essentially, what constitutes an effective worker engagement system is to be determined by theemployer or, in the framing of the new Act, the person conducting a business or undertaking(abbreviated to PCBU). The PCBU will not be required to negotiate with the workers but only toengage with them (a similar process to consultation under general employment law).
Minister Woodhouse has argued that all PCBUs will have an obligation to develop effective worker
engagement practices and that this will drive the necessary change, with WorkSafe enforcing therequirements if necessary. Section 64 of the Health and Safety at Work Act 2015 obliges PCBUs to“have practices that provide reasonable opportunities for workers… to participate effectively in
improving work health and safety… on an ongoing basis.”
However, there was an almost identical duty under s 19B of the Health and Safety in Employment
Act 1992, which states that “every employer must provide reasonable opportunities for theemployer’s employees to participate effectively in ongoing processes for improvement of health andsafety in the employees’ places of work.”
The definition of ‘reasonable opportunities’ is effectively the same in both old and new law.
WorkSafe and its predecessors have never taken action for a breach of s 19B and it appears likelythat it will struggle to enforce such an inchoate obligation.

21

Health and Safety at Work Act 2015, s 86A (particularly subss (3) and (4)).

65New Zealand Journal of Employment Relations, 41(2): 58-70

Risky BusinessOne of the most problematic aspects of Part 3 of the new Act (worker engagement, participation, andrepresentation) is the exemption from requirements to elect health and safety representatives or
consider implementing a health and safety committee if a PCBU has less than 20 workers andoperates outside of certain ‘high risk’ industries set by regulations.
The Government was strongly criticised for its initial list of ‘high risk’ industries. The Health and
Safety at Work (Worker Engagement, Representation and Participation) Regulations 2016 contain amodified list of industries designated as high risk including adventure activities, aquaculture; forestry
and logging; fishing, hunting, and trapping; major hazard facilities; mining drilling and quarrying;food product manufacturing; water supply; sewerage, and drainage services waste collection,
treatment, and disposal services; and construction.
The Regulations see approximately 560,000 workers without the right to have a health and safety
representative system if requested.22 The Minister received advice that this would see 5 out of 6
workers in small businesses lose this right that they enjoyed under the Health and Safety in
Employment Act 1992.23 Workers in small businesses who have lost this right include:







Transport workers, including water, road and rail freight transport;
Port operation workers;
Most manufacturing workers;
Hospital, health care and disability workers;
Agricultural workers; andPublic order, safety and regulatory services workers.

Perhaps wary of the opprobrium that greeted his proposal to retain worm-farming and cat-breedingon the list of high risk activities while leaving out sheep, dairy and beef farming, the Government
specifically excluded activities such as curtain installation, snake-catching, crocodile and buffalo
hunting from the definition of high risk.
The Minister was advised by officials that in other comparable jurisdictions, strong commonalities
emerge amongst what is considered a high-risk industry. Construction, manufacturing, andagriculture are consistently represented in any country’s assessment of its high-risk industries.
Mining, forestry and fishing usually appear whenever those industries are present in thatjurisdiction.24

Document titled “Small Business exclusion from HSRs if requested by worker”, undated and anonymous (Obtained
under Official Information Act 1982 Request to the Minister of Workplace Relations and Safety). This estimate wasdetermined when agriculture was considered a high-risk industry.
23
Email from Kelly Hanson-White to Michael Woodhouse (Minister for Workplace Relations and Safety) regarding the
proposed Regulations (16 August 2015) (Obtained under Official Information Act 1982 Request to the Minister ofWorkplace Relations and Safety).
24
Document titled “Guidance to the House”, undated and anonymous (Obtained under Official Information Act 1982
Request to the Minister of Workplace Relations and Safety).
22

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New Zealand Journal of Employment Relations, 41(2): 58-70
Flaws in the model used to assess whether an industry is high risk include:








No consideration of injury rate generally (outside of serious injury and death). The purpose ofa health and safety framework is to protect people at a workplace from injury, not merely
injuries that result in a week off work or more;
No consideration of occupational disease in the categorisation of ‘high risk.’ This wasassessed in earlier iterations of the model but then removed. Gradual process injuries are also
excluded;
The exclusion of deaths and injuries to bystanders and children under 15, which is concerning
given that New Zealand has no minimum age of employment and children are often killed(particularly in agriculture);
Reliance on workers making claims to ACC and those claims being accepted. Many
industries systematically under-report;
The use of an annualised average. Many seasonal industries have periods of much greater risk(such as calving season in dairy and beef farming). Some may have short, perhaps random,
periods of very high risk (such as security guards);
No consideration of the death and injury rate in SMEs in each industry. Evidence strongly
suggests that SMEs have higher death and injury rates than larger businesses, so a multipliereffect may be appropriate;25 andNo consideration of the effect of previous interventions in the industry (for example,
electricians work in an inherently hazardous environment which is controlled by regulationand training).

Other practical hurdles include the question of how and when 20 workers are counted, given that thedefinition of ‘worker’ includes contractors, temporary employees and some types of volunteers.
A practical problem with the model is the definition of high risk industries in reg 5(1)(b) as
industries where a business “operates predominantly.” This seems illogical, given that a businesswith 18 workers that allocates 49 per cent of its time and resources to operating a forestry crew and51 per cent to operating a wood chipping business is equally as risky while undertaking forestry as abusiness with 9 workers that undertakes forestry 100 per cent of the time.
The high risk exemption removes an existing right to request representatives and committees. It ispoorly thought-through and confusing. It is symptomatic of other changes wrought by theGovernment during the Select Committee process.

Setting Work Groups
Other less-understood changes are the restriction of health and safety representatives’ powers andduties to a particular work group and the manner in which these work groups are set up.
Under the Health and Safety in Employment Act 1992, the default position was that health and safety
representatives can act on behalf of any employee. The Health and Safety at Work Act 2015 follows

25

See, for example, John Mendeloff and others Small Businesses and Workplace Fatality Risk: An Exploratory Analysis(RAND Corporation, 2006), available at <www.rand.org>.

67

New Zealand Journal of Employment Relations, 41(2): 58-70
the Australian approach of limiting health and safety representatives from acting on behalf ofworkers outside of the work group that elected them.26
Work groups were seen as unduly bureaucratic by the Taskforce, which recommended that they not
be implemented.27 The CTU, Business New Zealand and the Business Leaders Health and Safety
Forum agreed, and made a specific joint approach to the Transport and Industrial Relations
Committee to persuade it to remove work groups.
Nonetheless, work groups remain a feature of the Health and Safety at Work Act 2015. The process
for their determination has been left to the PCBU, unlike in Australia where worker agreement isrequired. The default is that one work group covers the entire PCBU, but s 66(3) states that a PCBU
may determine one or more work group if the PCBU considers that a work group covering the wholebusiness or undertaking would be inappropriate having regard to the structure of the business orundertaking. This section has the potential to be misused by a PCBU to isolate health and safety
representatives to small pockets within the workplace.

Conclusion
The foreword of the Taskforce’s Report identified that “[a] key challenge in addressing workplace
health and safety is that it requires balancing the interests and needs of a number of participants,
particularly employers and workers.”28 The report noted that New Zealand’s implementation of the
Robens model failed to strike that balance, and that health and safety law has only become more“complex” in recent years. According to the Taskforce, its recommendations adequately address thatbalance – and any major changes to its recommendations “will lose the vital support of someparticipants and significantly weaken the potential benefits.”
Despite some positive changes, the Health and Safety at Work Act 2015 is a flawed piece oflegislation. This hybrid of Australian and New Zealand law has wound up with some of the weakest
aspects of both. The new Act fails to strike an appropriate balance between the competing interestsof workers and employers.
The Government had both public support and a legitimate opportunity to address New Zealand’spoor workplace health and safety record and fell at the final hurdle. It is possible, and perhaps evenlikely, that the new law will improve New Zealand’s health and safety record, however it will still
fall far short of comparable countries like the United Kingdom or Australia. These changes constituteanother chapter in the history of muddled compromise that has led to the death of thousands of New
Zealand workers. However this country dresses the sausage, we suspect it will leave a bad taste.

26

See Health and Safety at Work Act 2015, sch 2 cl 9. Clause 6 of sch 2 sets out some limited exceptions where healthand safety representatives may act on behalf of members of other work groups. However, in what is a worrying but likely
unintended consequence, health and safety representatives cannot exercise their powers on behalf of workers who are notmembers of work groups (even seemingly in situations of imminent serious harm).
27
Independent Taskforce Main Report, above n 4, at [250].
28
Independent Taskforce Main Report, above n 4, at 5.

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New Zealand Journal of Employment Relations, 41(2): 58-70

Appendix I: Independent Taskforce on Workplace Health and Safety Summaryof Key Systemic Weaknesses29
1. Confusing regulation
The system currently fails to make clear expectations of regulated entities and duty holders, and theregulator does not make compliance easy for the vast majority who want to comply. Sanctions for
those who intentionally, or through neglect, break the law are not adequate. The framework is
confusing with multiple pieces of legislation, blending hazard- and risk-management specifications,falling across overlapping and ambiguous jurisdictional boundaries. There is a lack of coordination
between agencies and gaps in coverage.
2. A weak regulator
Despite efforts in specific areas, and the integrity and dedication of many staff, the primary regulator
has failed to deliver on core responsibilities under the Robens model. Overall, it has failed to provide
the system with sufficient certainty on how duty holders and regulated entities should comply. The
regulator lacks capacity and capabilities, and it has failed to collaborate with other agencies on
effective harm prevention.
3. Poor worker engagement
Worker engagement in health and safety is generally ineffective and often virtually absent. New
Zealand falls well short of the strength of worker representative legislation and levels of engagement
operating in comparable jurisdictions.
4. Inadequate leadership
There is little leadership being shown by a large number of people and organisations who haveinfluence in the workplace. The issues include a lack of capability among managers generally, New
Zealand’s shortage of large private sector employers who could become exemplars, and defensive
attitudes in some industry bodies.
5. Capacity and capability shortcomings
These shortcomings exist among workers, managers, health and safety practitioners, business leaders
and the regulator. The shortcomings include insufficient knowledge of workplace health and safety
risks and specific hazards, and insufficient knowledge of workplace health and safety regulatory
requirements, including of rights and obligations.
6. Inadequate incentives
New Zealand lacks the positive incentives and deterrents needed to drive compliance with minimum
health and safety standards or to foster behaviours that lead to continual improvement. The low
likelihood of inspector visits, and of prosecution or other action, creates an uneven playing field andeffectively rewards non-compliance. The regulators’ resources are not applied optimally, penalties
are far too low and the tools available are limited.
7. Poor data and measurement
New Zealand has poor information and intelligence on health and safety risk concentrations, causesof workplace injuries and illnesses, and the effectiveness of interventions to improve health andsafety outcomes. We do not know the full extent of the issues or what to target. Reviewers andcommittees have reported on the issues before, but their recommendations have been largely ignored.
29

Independent Taskforce Executive Report, above n 5, at 11-12.

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New Zealand Journal of Employment Relations, 41(2): 58-70

8. Risk tolerant culture
Our national culture includes a high level of tolerance for risk, and negative perceptions of healthand safety. Kiwi stoicism, deference to authority, laid-back complacency and suspicion of red tape
all affect behaviour from the boardroom to the shop floor. If recognition and support for health andsafety are low or intermittent, workplaces are liable to develop, accept and defend low standards,
dangerous practices and inadequate systems.
9. Hidden occupational health
New Zealand’s estimated 500-800 premature deaths year from occupation ill-health receive little
government, media or business attention. Inadequate data systems and research mean the scale andnature of the issues are largely unknown – and the system is unresponsive to new and emerging risks.
Activity is fragmented across multiple regulators, disciplines and sectors with no effective coordination or leadership.
10. Major hazard facilities
Some major hazard facilities have insufficient oversight. The current framework focuses on certain
industries (e.g. offshore petroleum, mining, geothermal energy) but other facilities with comparable
dangers are not subject to the same degree of oversight and regulation. This reflects the gaps inknowledge about major hazards, and the fact that the risk landscape in New Zealand is notunderstood.
11. Particular challenges to SMEs
Challenges arise for SMEs from the generally less formal management style of smaller businesses,
their resource constraints, limited access to external advice and support, and lack of systems fit for
health and safety purposes. The current regulator has provided insufficient relevant advice to SMEs
who are particularly dependent on it.
12. Particular at-risk populations
Some groups experience disproportionate levels of workplace-related poor health and injury. Low
literacy and poor communication skills are, in themselves, risk factors especially in workplaces thatare inherently more risky. This presents a particular challenge to policy-makers and regulators, as a
one-size-fits-all response to population-specific outcomes, without a careful analysis of all
underlying causes, may result in poorly targeted and ill-conceived interventions.

70New Zealand Journal of Employment Relations, 41(2): 71-86

Occupational Health And Safety: Why And How Should
Worker Participation Be Enhanced In New Zealand?

VIKTORIYA PASHORINA-NICHOLS
Abstract
This paper provides a brief overview of the international academic commentary on thesubject of worker participation in Occupational Health and Safety (OHS) and thenconsiders the character of worker participation in New Zealand OHS management(OHSM) in more detail. The paper highlights how vital worker participation is for thehealth and safety (H&S) of workers. The paper concludes that the changes introduced by
the Health and Safety at Work Act 2015 (HSW Act) provide evidence that New Zealandhas taken steps in the right direction, but there is further room for improvement; inparticular H&S representatives and H&S committees should be available to all workers
without exceptions.

Key words
Occupational health and safety, OHS, worker participation, Health and Safety at WorkAct 2015.

Introduction
Occupational health and safety (OHS) law in New Zealand has been in existence sincethe 19th century.1 Despite such a lengthy presence, the country’s work-related injury
fatality rate is comparatively one of the worst internationally.2 The development of OHS
seems to have taken place roughly after major mine explosions occurred in New
Zealand.3 The natural conclusion which flows from such an observation is that OHS
reform is reactionary — the most recent evidence stemming from the Pike River mine
disaster in 2010, which resulted in the Health and Safety at Work Act 2015 (HSW Act).

Victoria University of Wellington Law Graduate, currently working at Simpson Grierson in Auckland.
Felicity Lamm “Participative and productive employment relations: the role of health and safetycommittees and worker representation” in Erling Rasmussen (ed) Employment Relationships: Workers,
Unions and Employers in New Zealand (2nd ed, Auckland University Press, Auckland, 2010) 168 at 169;and see generally Noel Woods Industrial Conciliation and Arbitration in New Zealand (RE Owen,
Government Printer, Wellington, 1963).
2
See Appendix I; Philip Gunby “How Bad is the State of Occupational Fatalities in New Zealand?” (2011)
36(1) NZJER 35 at 39–40; and see also Independent Taskforce on Workplace Health and Safety The Reportof the Independent Taskforce on Workplace Health And Safety: He Korowai Whakaruruhau (April 2013) at[15].
3
See Appendix II.
171

This paper begins with a general introduction to the topic of worker participation. This isfollowed by an explanation of New Zealand’s development of worker participation in
OHS, including a section on the HSW Act. The bulk of the text discusses international
academic commentary on the benefits of granting participation to workers in OHS
matters. Based on that international literature, certain factors are discussed that would
help to ensure that whatever worker participation practice is implemented, it is done so as
to maximise its own benefits. Lastly, certain lessons are drawn for the New Zealandgovernment, employers, workers and other interested parties to consider.

Overview of Worker Participation
There is no precise definition of worker participation; thus, whenever authors use theparticular phrase, they often indicate their own personal preference for the term.4 Worker
participation is the “expression [that] is possibly the most common[ly]” used,5 standing incompetition with many other well-known phrases: employee (or worker) involvement,
employee participation, industrial democracy, worker control, high-involvement Human
Resources Management (HRM), voice and self-management.6 One of the reasons certain
authors prefer to use worker participation is because the term is more inclusive of a great
variety of activities and is therefore broader in its scope, whereas the other alternative
terms tend to exclude certain activities undertaken by workers.7
Despite being generally broader than the other terms, worker participation has a spectrumof meanings of its own. When the term worker participation is used at its broadest, it istypically done in the context of discussing or explaining the various forms of worker
activities;8 but because authors may have strong personal commitments to particularforms of participation, they choose to restrict the definition of worker participation.9 For
instance, the most common practice among some writers is to exclude collective
bargaining as an activity covered by worker participation.10
Nevertheless, authors are in agreement that worker participation practices, which
influence the decision making of the organisation, can be divided into direct and indirect
See Adrian Wilkinson and others “Conceptualizing Employee Participation in Organizations” in Adrian
Wilkinson and others (eds) The Oxford Handbook of Participation in Organizations (Oxford University
Press, New York, 2010) 3 at 3–7 and 10–13; and see also Raymond Markey and others “Exploring
employee participation and work environment in hotels: Case studies from Denmark and New Zealand”(2014) 39(1) NZJER 2 at 3–5.
5
AJ Geare “Worker Participation” in The System of Industrial Relations in New Zealand (2nd (revised) ed,
Butterworths, Wellington, 1988) 409 at 411.
6
At 410.
7
At 411.
8
At 411.
9
At 411–412.
10
See examples at 412, n 1, n 2 and n 3; and contrast Richard Block and Peter Berg “Collective Bargaining
as a Form of Employee Participation: Observations on the United States and Europe” in Adrian Wilkinson
and others (eds) The Oxford Handbook of Participation in Organizations (Oxford University Press, New
York, 2010) 186.
4

72

participation (also known as representative participation).11 Some examples of suchpractices are, inter alia, communication and discussion, face-to-face consultation with amanager, company-wide meetings, collective bargaining, works councils, joint
management, self-management and worker ownership.12
It is now appropriate to explain the history of worker participation in New Zealand,
specifically in the OHS context.

Development of Worker Participation in OHS in New Zealand
The first seed to give all workers a more participative role in OHS in New Zealand wasplanted by the ACOSH Report in 1988.13 The conclusions reached by the ACOSH Reportwere primarily based on the equivalent, but much earlier, United Kingdom report better
known as the Robens Report.14 The two documents advocated for the need to impose:15…a statutory duty on every employer to consult with his employees or theirrepresentatives at the workplace on measures for promoting safety and health atwork, and to provide arrangements for the participation of employees in thedevelopment of such measures.

This view became very dominant because it was realised that “real progress is impossible
without the full co-operation and commitment of all employees”.16
The United Kingdom’s Health and Safety at Work etc Act 1974 intended to implement
the Robens Report recommendations, but it soon drew much criticism on the basis thatthe new laws were inconsistent with “the scheme which the [Robens] Committee had inmind”.17 The Safety Representatives and Safety Committees Regulations 1977 have, incontrast, had a much bigger impact because, to the Government’s considerable hesitation,
they provided for the appointment of H&S representatives and committees.18 In essence,
whereas the Act allowed much discretion for having certain participatory practices inplace, the Regulations constituted a far stricter imposition on employers.

11

Geare, above n 5, at 414–415.
See generally at 414–419.
13
Advisory Council for Occupational Safety and Health (ACOSH) A Public Discussion Paper:
Occupational Safety And Health Reform (June 1988); and see generally John Wren “From the‘Balkanisation of Control’ to Employer Management Systems: OHS Policy and Politics in New Zealand
1981–1992” in Michael Lloyd (ed) Occupational Health and Safety in New Zealand: Contemporary Social
Research (Dunmore Press, Palmerston North, 2002) 43 at 43–47.
14
Committee on Safety and Health at Work (Lord Alfred Robens Chair) Safety and Health at Work: Reportof the Committee 1970-72 (1972) (the Robens Report).
15
Robens Report, above n 14, at [70]; and see also ACOSH, above n 13, at 11.
16
Robens Report, above n 14, at [59].
17
Adrian Merritt “Britain: The Health and Safety at Work etc Act 1974” in Guidebook to Australian
Occupational Health & Safety Laws (CCH, North Ryde (NSW), 1983) 243 at 252.
18
At 253.
12

73

Following a similar path in the 1970s and 1980s,19 Australian states and territories haveenacted their own statutes granting workers the right of participation in OHS.20 Hence,
the laws governing OHS in Australia varied in many respects for over 30 years,
ultimately inciting Australia to begin the process of harmonisation:21 its 2008 national
review resulted in the Model Work Health and Safety Act 201122 (discussed in further
detail later).23
New Zealand was one of the last countries to plant a seed that worker participation is anecessity — the ACOSH Report of 1988 — but, unfortunately, that same seed did not
germinate until many years later. For instance, the Health and Safety in Employment Act
1992 did not give workers a statutory right of participation. In fact, it was severely
opposed: the then Minister of Labour believed H&S representatives and committees to bea “confrontational approach”.24
Nevertheless in 2002, approximately 20 years after the United Kingdom and Australia,
New Zealand underwent a considerable shift in attitude which demonstrated significant
support for employee involvement in OHS. When speaking in 2001, Margaret Wilson —then Minister of Labour — showed her support for the insertion of statutory rights for theparticipation of workers:25
The [Health and Safety in Employment Amendment Bill] … recognises that healthand safety issues are fundamentally employment relations issues. A good culture ofhealth and safety practices requires the participation of everyone.

Consequently, the 2002 Act introduced a general duty to involve employees in OHS
matters: “[e]very employer must provide reasonable opportunities for the employer’s
employees to participate effectively in ongoing processes for improvement of health andsafety in the employees’ places of work”.26 The purpose of this new duty was to ensurethat all those with relevant knowledge and expertise were involved in OHS, thereby
resulting in better decision making by employers on H&S matters at the workplace.27
The large number of incidents in employment since 2002 — including road worker
injuries, hazardous substances spills, forestry injuries, Ashburton Work and Income
shootings, farming accidents, construction incidents and the Pike River mine accident —19

Richard Johnstone and Michael Tooma Work Health and Safety Regulation in Australia: The Model Act(Federation Press, Sydney, 2012) at 4–6, 136–137 and 141–143.
20
At 6–8.
21
See generally at 8–25.
22
See generally at 26–37.
23
See generally at 26–37.
24
Ian Campbell “From no fault to own fault? Changes in OSH regulation in New Zealand” (1992) 1 J Occ
Health Safety – Aust NZ 3 at 4.
25(3 December 2002) 604 NZPD 2442.
26
Health and Safety in Employment Amendment Act 2002, s 13; and see also Health and Safety in
Employment Act 1992, s 19B.
27
Health and Safety in Employment Amendment Act, s 13; and see also Health and Safety in Employment
Act, s 19A.

74

have highlighted the inadequacy of the OHS legislative framework in New Zealand.28 In
particular, the 2010 Pike River incident, which took the lives of 29 men, was a major
wake-up call for the whole country.29 As a result, two reports have been produced
regarding the accident,30 one of which recommended that New Zealand align its OHS
laws with that of Australia — the Australian Model Health and Safety Act 2011 —because:31It is the most recent expression of the Robens approach;
It is the result of a long period of investigation and consultation (domesticallyand internationally);
Australia has undergone an extensive modernisation process, including thedevelopment of regulations and information, and New Zealand can capitalise onthat work; andThere are advantages to New Zealand companies in having a common transTasman approach to workplace health and safety.

As a direct consequence of the Pike River disaster, the HSW Act was passed in August
2015, proving once again the reactionary nature of OHS reform in New Zealand.

HSW Act – Worker Participation
The HSW Act, which is comparable to the Australian Model Act in many respects, began
its life as the Health and Safety Reform Bill. 32 What has been described as “the meat anddrink of the bill” is Part 3, which deals with worker engagement, participation andrepresentation.33
The Twin Duties
The HSW Act places a duty on a PCBU to engage with workers whenever engagement isrequired.34 A PCBU is defined as a person conducting a business or undertaking, which
has the effect of broadening the scope of persons responsible for their workers. 35 A
PCBU and its workers may agree on adequate procedures for engagement, but theprocedures must not be inconsistent with s 59, which prescribes what engagement withworkers must involve.36 Even though the Act’s notes to the engagement sections suggest

See WorkSafe New Zealand “Workplace Fatalities Summary 2013–2015” <www.business.govt.nz>.
See also JR Lamare and others “Independent, dependent, and employee: Contractors and New Zealand’s
Pike River Coal Mine disaster” (2015) 57(1) JIR 72 at 82.
30
Royal Commission on the Pike River Coal Mine Tragedy Royal Commission on the Pike River Coal
Mine Tragedy: Volume 1 and Volume 2 (October 2012); and Independent Taskforce, above n 2.
31
Richard Rudman “Health and Safety” in New Zealand Employment Law Guide (CCH, Auckland, 2015)
391 at 425; and see Independent Taskforce, above n 2, at [215].
32
Health and Safety Reform Bill 2014 (192-2).
33(19 August 2015) 707 NZPD 5919.
34
Health and Safety at Work Act 2015, s 58(1).
35Section 17(1).
36Sections 58(2) and 58(3).
28
29

75

that they are comparable to the Australian Model Act, it is noteworthy that the Australianequivalent is called a duty to consult as opposed to engage.37
The Act also places a duty on a PCBU to have worker participation practices, whichshould “provide reasonable opportunities for workers … to participate effectively in
improving work health and safety in the business or undertaking on an ongoing basis”. 38
In essence, the most substantial change from the Health and Safety in Employment Act
1992 is that instead of a general duty to provide reasonable opportunities for employee
participation, employers must now implement practices to ensure the provision of suchopportunities.
If a PCBU were to breach either of its twin duties, it would commit an offence and, thus,
would be liable on conviction to a fine.39
H&S Representatives and Committees
The Act prescribes two practices of worker participation: H&S representatives and H&S
committees.40 A H&S representative may be elected either if a worker notifies a PCBU
that he or she wishes to have a representative or if a PCBU wishes to do so on its own
initiative.41 If elected, workers may be divided into work groups with different
representatives.42 A H&S committee may be established if there is a request made anddirected at PCBU by a H&S representative or by five or more workers at thatworkplace.43
The controversy surrounding the Health and Safety Reform Bill on these two practices
arose because there was a significant change between the Bill’s original wording and its
post-Select Committee version, which has been adopted in the Act.44 In summary, a
PCBU may decline to respond affirmatively to a worker’s request for a H&S
representative if that PCBU runs a small business with fewer than 20 workers in a nonhigh-risk sector.45 Moreover, the same kind of business may also reject a request for a
H&S committee.46 High-risk sectors, as recently defined in the Health and Safety at Work(Worker Engagement, Participation, and Representation) Regulations 2016, arepredominantly agricultural and labour-intensive business undertakings only.47

37Work Health and Safety Act 2011 (Cth), s 47.
Health and Safety at Work Act, s 61(1).
39Sections 58(4) and 61(4).
40Part 3, sub-pt 2.
41
Sections 62(1) and 62(3).
42Section 64(1).
43Section 66(1).
44
See WorkSafe New Zealand “Health and Safety Reform Bill – key changes” <www.business.govt.nz>.
45
Health and Safety at Work Act, s 62(4).
46Section 66(3).
47
Health and Safety at Work (Worker Engagement, Participation, and Representation) Regulations 2016,
reg 5.
38

76

The recently-passed Act is intended to improve the OHS legislative framework in New
Zealand, especially because it repeals, inter alia, the Health and Safety in Employment
Act 1992.48 It is true that the recent reform is a step in the right direction because, as
explained below, worker participation is very advantageous and the HSW Act places aduty on every PCBU to engage with workers and to implement worker participation
practices. However, the enacted exceptions to the twin duties could in practice reduce thepotential significance of the recent OHS reform by effectively depriving workers at
smaller businesses of the right to have H&S representatives or committees (but more on
this later). Hence, the New Zealand legislative framework for OHS may need to berevisited shortly.

Goals and Benefits of Worker Participation
As explained above, worker participation does not have a precise definition and, hence,authors use the phrase because of their personal preference for it. The issue that stems
from a lack of definition is that generalisations about the outcomes of worker
participation are very difficult to make. Some results may be heavily biased due to thewriter’s own preferences: “evidence is apparently viewed not only though rose tinted
glasses, but through rose tinted glasses with distorted lenses”.49 Nevertheless, this section
argues that worker participation may achieve a variety of goals, which may result inmany benefits for both employees and businesses in an OHS context. It is, therefore, notsurprising that worker participation in OHS has been recognised internationally.50
Employee Wellbeing
Ethics
The ethical argument in favour of worker participation is that “workers bear the brunt of
the effects of work-related hazards”, so they should be able to identify and address thevarious hazards in their workplace.51 The benefits, which stem from participation, aretwofold: (a) managers are able to develop more adequate H&S measures when theirworkers highlight danger-prone areas, and (b) it is more likely that workers’ interests will
be protected whenever conflicts may arise “between the drive for production and profitson the one hand, and work health and safety on the other”.52 In essence, democracy will
be evident at the workplace.53

48

Section 231.
Geare, above n 5, at 434.
50
Occupational Safety and Health Convention, 1981 (ILO Convention C155) 1331 UNTS 280 (entered into
force 11 August 1983); and European Union Framework Directive 89/391 on OSH [1989] OJ L183.
51
Johnstone and Tooma, above n 19, at 137–138.
52
At 138; and see also Leigh-Ann Harris “Legislation for Participation: an Overview of New Zealand’s
Health and Safety Representative Employee Participation System” (2011) 36(2) NZJER 45 at 45.
53
See generally Stewart Johnstone and Peter Ackers “Introduction: Employee voice” in Stewart Johnstone
and Peter Ackers (eds) Finding a Voice at Work? New Perspectives on Employment Relations (Oxford
University Press, New York, 2015) 1 at 8.
49

77

Social Justice
A related argument for worker participation is the socially just case for representative
participation:54…the rights of workers to form unions, elect representatives, and participate in therunning of business through work councils and collective bargaining are … absolute
entitlements that must be respected regardless of cost.

In short, the right to participate is an end in itself and, thus, a benefit to workers.
Reduction in the Number of Injuries and Fatalities
Arguably, the main goal of worker participation in an OHS context is to reduce thenumber of accidents that result in injuries and fatalities. Academic literature is consistentin the view that the number of injuries and fatalities in the workplace decreases as aconsequence of worker participation practices:55
A number of studies suggest that indicators of objective OHS performance, such as
injury rates, are better in situations in which joint arrangements are in place and/or
when trade unions are engaged in worker representation in workplaces. Other studies
point to associations between the presence of representative structures and indicatorsof a more systematic approach to OHSM to determine the extent to which suchmeasures are central to workplace arrangements for OHSM.

Since New Zealand decided to align its laws with the laws of Australia, it is natural tolook to our neighbour’s statistics for confirmation. The Model Act in Australia has
proven to be a success, with the rate of occupational injuries and casualties falling. For
instance, in the period of 2011-2012, just after the Act was passed, the injury incidence
rate fell by 26 per cent and the fatality incidence rate fell by 41 per cent.56 Moreover,Australia has recently reported the lowest number of work-related deaths in 11 years,57
and the lowest compensated fatality rate in a decade.58
This segment might lead one to think that any regulation of H&S primarily benefits
workers, but the benefits that employers (or management) receive cannot be excluded.
Edmund Heery “Frames of reference and worker participation” in Stewart Johnstone and Peter Ackers(eds) Finding a Voice at Work? New Perspectives on Employment Relations (Oxford University Press, New
York, 2015) 21 at 29.
55
David Walters “Workplace Arrangements for Worker Participation in OHS” in Elizabeth Bluff, Neil
Gunningham and Richard Johnstone (eds) OHS Regulation for a Changing World of Work (Federation
Press, Sydney, 2004) 68 at 75; and see also Richard Johnstone, Michael Quinlan and David Walters“Statutory Occupational Health and Safety Workplace Arrangements for the Modern Labour Market”(2005) 47(1) J Ind Relat 93 at 94–95.
56
Safe Work Australia Comparative Performance Monitoring Report: Comparison of work health andsafety and workers’ compensation schemes in Australia and New Zealand (October 2014) at vii.
57
Safe Work Australia “Lowest number of work-related deaths in 11 years” (15 July 2014)<www.safeworkaustralia.gov.au>.
58
Safe Work Australia “Lowest compensated fatality rate in a decade” (9 October 2014)<www.safeworkaustralia.gov.au>.
5478

Business Wellbeing
Certain academics are of the view that “the core purpose of worker participation is toimprove business performance”.59 In order to attempt to measure business performance, it
must be remembered that “[t]he success of any business depends on the employees. Thatis the bottom line.”60 As discussed above, there are multiple ways in which employee
wellbeing can improve if worker participation practices are implemented; as a result, it isnatural to conclude that the business where those employees work would also flourish:61…human performance is higher when people are physically and emotionally able towork and have a desire to work. Higher levels of human performance lead to higher
levels of productivity, which in turn can lead to higher profits.

The following figure, created by other authors, is useful in explaining the benefits ofworker participation for a business:62
Pathways to Productivity
Interventions

Results

Disease Prevention,
Health Promotion

Reduced Absenteeism

DesiredOutcomeIncreased
Productivity
Acute & Chronic
Illness Management

Improved
Performance,
Creativity, Motivation

Environmental
Health & Safety

ReducedAccidents,
Cost Savings
Cost
Reduction

Healthy
CultureCorporate

Reduced Health Care
Costs

59

Heery, above n 54, at 25.
James Roughton and James Mercurio “Employee Participation” in Developing an Effective Safety
Culture: A Leadership Approach (Butterworth-Heinemann, 2002) 116 at 116.
61
Michael O’Donnell “Health and Productivity Management: the Concept, Impact, and Opportunity –Commentary to Goetzel and Ozminkowsi” (2000) 14(4) AJHP 215 at 215.
62
Based on the figure of John Riedel and others “The Effect of Disease Prevention and Health Promotion
on Workplace Productivity: A Literature Review” (2001) 15(3) AJHP 167 at 168 as cited in Felicity Lamm,
Claire Massey and Martin Perry “Is there a link between Workplace Health and Safety and Firm
Performance and Productivity?” (2007) 32(1) NZJER 72 at 76.
60

79

If an employee is given a chance to participate, then that employee is likely to become
more aware and thus more engaged. This may result in a higher enjoyment of the workand a greater responsibility for the job, which in turn results in a better quality product orservice.63
Furthermore, higher engagement of workers has been found to lead to lesser absenteeism
and reduced turnover,64 which is likely to result in a direct saving of costs to the business.
However, it must be remembered that it is difficult to assess specifically the contributionof OHS to the overall productivity of a business because other aspects of business life andmanagement also play a role.65
Lastly, it is important to appreciate that worker participation practices may result in thedevelopment of a safety culture over time, thereby maintaining employee and businesswellbeing into the future.

How To Maximise Benefits of Worker Participation in OHSThe HSW Act does not prescribe which worker participation practices must be
implemented, unless there are requests to elect a H&S representative or to establish a
H&S committee. Every practice has its own advantages in comparison with others, but aparticular practice may prove far more beneficial within one organisation over anotherbecause it is better suited to the type of industry, business, workplace size or some othermatter. This section explores which factors must be present and considered to enhance
any particular type of worker participation. However, before diving into a discussion ofthese various factors, the special role of H&S representatives and H&S committees in
OHS must be emphasised.
The Special Role of H&S Representatives and Committees
There is some empirical evidence available to indicate that direct participation practices,
particularly when carried out by individual non-unionised workers engaging with their
managers, have little effect on workplace H&S.66 Instead, indirect (representative)
participation schemes have been found to be much more useful.67 In short, “joint
arrangements and trade union representation at the workplace are associated with better
health and safety outcomes than when employers manage work health and safety without
representative worker participation”.68

63

See Roughton and Mercurio, above n 60, at 121.
At 121.
65
See Terri Mylett and Ray Markey “Worker Participation in OHS in New South Wales (Australia) and
New Zealand: Methods and Implications” (2007) 7(2) Employment Relations Record 15 at 18–21; and see
also Lamm, Massey and Perry, above n 62, at 81–82.
66
Johnstone and Tooma, above n 19, at 138; and see also Walters, above n 55, at 79–80.
67
Johnstone and Tooma, above n 19, at 138–139.
68
At 139.
64

80

Within the indirect participation umbrella, the 1972 Robens Report emphasised the needfor the two forms of worker participation incorporated by the HSW Act: H&S
representatives and H&S committees. The Robens Report was of the view that the role of
H&S representatives is key to any success in OHS,69 therefore H&S representatives“should have strong channels of communication with government work health and safety
inspectors”.70 The significant role of H&S representatives in OHS is certainly supported
by international literature.71
The role of joint committees may be more difficult in practice because decision making is
not always easy when there are many parties with various interests. However, in order toimprove OHS, it is best to have a H&S committee, which would represent the variety ofinterests at any one workplace, because the skills and experience of multiple teams ordepartments may prove useful.72
Although the two discussed practices are vital for OHS, there are exemptions available
under the HSW Act for PCBUs who run a small business with fewer than 20 workers in a
non-high-risk sector.
Arguably, this permissible exclusion is inappropriate because many businesses in New
Zealand may fall into that category: “small business sectors … represent approximately
90 per cent of the business population and [employ] 60 per cent of the businesspopulation”.73 Many New Zealand workplaces, particularly those operating within theconstruction, forestry and agricultural industries, might not take advantage of the twopractices, which are empirically proven to be the most useful in dealing with OHS.
Furthermore, it seems somewhat nonsensical for a New Zealand Act modeled on that ofAustralia to introduce such an exception when none exists in the Model Act. No doubt
some may argue that this decision was made to reflect New Zealand’s unique features,but it would be hard to justify such a proposition.
New Zealand could perhaps learn from Sweden, which established regional or territorial
H&S representatives for its workers in the 1960s-1970s. This practice underwent
substantial evaluations in the 1970s and 1990s, which concluded overall that regional
H&S representatives “are amongst the most powerful, effective and sustainable ofintermediaries for stimulating and supporting participative arrangements for health andsafety in small businesses”.74 In summary, every workplace, no matter how big or small,should be represented by a H&S representative and/or committee.

69

Robens Report, above n 14, at [66].
Johnstone and Tooma, above n 19, at 141.
71
At 139; Felicity Lamm and David Walters “Regulating Occupational Health and Safety in Small
Businesses” in Elizabeth Bluff, Neil Gunningham and Richard Johnstone (eds) OHS Regulation for a
Changing World of Work (Federation Press, Sydney, 2004) 94 at 109 –110.
72
See Roughton and Mercurio, above n 60, at 121.
73
Markey and others, above n 4, at 7.
74
Lamm and Walters, above n 71, at 110.
7081Factors That Maximise Worker Participation Practices
In case H&S representatives and/or committees are not established, academic literaturesuggests that the following factors should help to support and maximise any worker
participation practice: legislation, workplace culture, information and training, and tradeunion involvement.
Legislation
It is important to note that state intervention is crucial if improvements in OHS are to beachieved: “[l]egislation provides guidance on the form and nature of participation andlegitimises representatives’ rights to resources, thus enabling participation.”75 It istherefore encouraging to see New Zealand trying to solve its OHS problem throughlegislation, but it is most unfortunate that this legislation permits exemptions to the twomost useful worker participation practices.
Workplace Culture and Management Commitment
The fact that culture generally matters is equally applicable to OHS worker participation
practices. Before any program or scheme is implemented, it pays to observe and consider
the existing organisational and social-relational conditions because these will strongly
affect the outcomes of the participatory practice. For instance, one study showed thatworkers “under more traditional managerial ‘regimes’” do not tend to welcome anychange, thereby reducing the likelihood of positive outcomes if new worker participation
systems are introduced.76 Overall, it is best if there is evidence of “worker organisation at
the workplace that prioritises OHS and integrates it in other aspects of representation on
industrial relations”.77
The workplace culture also extends to (senior) management, which ought to show its
commitment to improving OHS performance and participative arrangements.78
Information and Training
Training is absolutely crucial when it comes to workplace H&S: empirical evidence
suggests that better-trained H&S representatives contribute significantly to OHS at aworkplace.79 It is promising to note that H&S representatives, if elected, are entitled toattend training and be paid for it under the HSW Act.80

75

Harris, above n 52, at 45 [inline citation omitted]; and see also Lamm and Walters, above n 71, at 112.
Vicki Smith “Introduction” in Vicki Smith (ed) Worker Participation: Current Research And Future
Trends (Elsevier JAI, Amsterdam, 2006) xi at xiv.
77
Walters, above n 55, at 78.
78
At 78.
79
At 79; and Lamm and Walters, above n 71, at 113–114.
80
Health and Safety at Work Act, sch 2 s 12.
7682

Any training, however, should extend to all those working in an organisation.81 It is also
desirable to update workers regularly on OHS matters because some will undoubtedly
forget what the correct procedures are.
Trade Union Involvement
Trade unions’ involvement significantly increases the voice and representation ofworkers and consequently OHS statistics are likely to improve.82 Specifically, the role oftrade unions in the provision of information and training to workers and H&S
representatives is desirable.83
However, it is important to note that the role of trade unions has diminished since the1980s around the world and most certainly in New Zealand. Hence, the falling influenceof trade unions is a phenomenon that must be accepted, despite it being extremely
unfortunate for OHS. It must be emphasised, however, that non-union participation may
have just as much, if not greater, contribution to OHS.

Conclusion: Lessons for New ZealandThis paper argues that worker participation can support OHS in any workplace.
Consequently, due to the HSW Act’s imposition on PCBUs of a duty to engage withworkers and to adopt worker participation practices, the recent reform is a step in theright direction for the legislative framework of OHS in New Zealand. The Act wasmodeled on a similar Australian Act, which has fortunately helped to reduce theincidence of occupational injuries and fatalities in Australia.
This paper also suggests that, out of the many worker participation practices available,
the two that are the most suitable for OHS are H&S representatives and H&S committees.
It is pleasing that the HSW Act actually provides for those practices in its provisions;however, the problem lies in the fact that the Act allows PCBUs to reject any request foreither practice if the business has fewer than 20 workers and is considered not high-risk.
A lesson ought to be learnt from the United Kingdom’s Health and Safety at Work etc
Act 1974, as mentioned earlier, which gave too much discretion to employers, thereby
weakening the spirit of the Robens Report. The 1977 Regulations, which placed an
imposition upon employers to appoint H&S representatives and committees, proved to be
more effective than the Act in advocating for appropriate OHS. Moreover, the AustralianModel Act does not have a similar exception in its provisions, thus the exception in the
New Zealand HSW Act is illogical and should not exist. The bottom line is that every
worker is susceptible to injuries no matter where they work, so it is crucial for everyone
to have access to practices of worker participation that truly work.

81

See Roughton and Mercurio, above n 60, at 130.
Lamm and Walters, above n 71, at 111–112.
83
Walters, above n 55, at 78–79.
82

83

If, nevertheless, H&S representatives and committees are not implemented, the following
factors may prove useful in improving OHS if taken into account by the government,
employers and other interested parties: legislative support, workplace culture, provisionof information and adequate training, and trade union involvement.

84

Appendix I

Work-Related Fatalities by Country.84

Comparison of Australia’s work-related injury fatality rate with the best performing
countries.85

Philip Gunby “How Bad is the State of Occupational Fatalities in New Zealand?” (2011) 36(1) NZJER
35 at 39.
85
Safe Work Australia National OHS Strategy 2002-2012: Progress against targets (February 2015) at 3.
84

85

Appendix II
Major mine disasters in Casualties
New Zealand
21 February 1879
34 deaths
Kaitangata
26 March 1896
65 deaths
Brunner
12 September 1914
Ralph’s mine, Huntly
3 December 1926
Dobson mine
24 September 1939
Glen Afton mine, Huntly
19 January 1967
Strongman mine

43 deaths

19 November 2010
Pike River mine

29 deaths

9 deaths

Response
Mines Department was given the power
to inspect mines. The 1890s Liberal
government’s reforms such as theintroduction of Factories Act 1891, which
set out minimum standards of work.
The Workers Compensation Act 1900
mentality of compensating for injuries, as
opposed to preventing them, wasdominant.

11 deaths
19 deaths

The OHS reforms of 1970s/1980s in New
Zealand (explained in the paper) andintroduction of ACC.
Health and Safety at Work Act 2015.

Mining accidents in New Zealand.86

Based on Alan Sherwood and Jock Phillips “Coal and coal mining: Mining accidents” (17 November2015) Te Ara: The Encyclopedia of New Zealand <www.teara.govt.nz>.
8686New Zealand Journal of Employment Relations, 41(2): 87-103

Regulating Work That Kills Us Slowly: The Challenge of Chronic
Work-Related Health Problems
DAWN DUNCAN
Abstract
New Zealand has a long history of neglecting the chronic health effects of work. Recent healthand safety reforms, including the new Health and Safety at Work Act 2015, risk continuing thisneglect, with serious negative consequences for worker health. This paper proposes three areasof legislative reform needed to begin to tackle the growing challenge of chronic work-related
health problems in New Zealand.

Key words
Health and safety, psychosocial hazards, compensation.

Introduction
The Health and Safety at Work Act 2015 (HSWA) was a response to New Zealand’s poor
record of occupational health and safety, highlighted in the Report of the Royal Commission
on the Pike River Mine Tragedy1 and the Report of the Independent Taskforce on Workplace
Health and Safety.2 The HSWA forms part of the Working Safer Reform Package,3 which
includes greater powers for the regulator, tougher penalties, and the establishment of a nationaltarget to reduce serious injuries and fatalities.4 While these measures are good, they do little toaddress New Zealand’s systemic failure in responding to chronic work-related harm. The
Independent Taskforce described New Zealand’s response as a “tragic paradox”:5
While New Zealand’s acute harm and workplace safety statistics are woeful and rightly attract
considerable attention, the much more damaging occupational health impacts of the workplace goalmost completely under the radar.

The chronic work-related health problems going under the radar in New Zealand include
depression, anxiety, drug and alcohol abuse, pain syndromes, neurological and reproductive
disorders, sleep disorders, respiratory disease, suicide, heart disease and many cancers. These
chronic health effects of work are a significant problem, estimated by WorkSafe to result in anDoctoral Candidate, Faculty of Law, Victoria University of Wellington. Written as part of the Third Biennial
Labour Law Conference of the New Zealand Labour Law Society (Wellington, 27 November 2015).
1
Royal Commission on the Pike River Coal Mine Tragedy Report of the Royal Commission on the Pike River
Coal Mine Tragedy (October 2012).
2
Independent Taskforce on Workplace Health and Safety The Report of the Independent Taskforce on Workplace
Health and Safety: He Korowai Whakaruruhau (April 2013).
3
Ministry of Business, Innovation and Employment (MBIE) Working Safer: Blueprint for New Zealand’s Healthand Safety System (August 2013).
4
Ministry of Business, Innovation and Employment (MBIE) Working Safer: Reducing Work-Related Fatalities
and Serious Injury by 2020: Progress Toward the Target (March 2015).
5
Independent Taskforce on Workplace Health and Safety, above n 2, at 16.

87

New Zealand Journal of Employment Relations, 41(2): 87-103
additional 600-900 deaths,6 and affecting tens of thousands more workers,7 each year. Chronic
work-related health problems pose an urgent challenge for New Zealand’s health and safety
and accident compensation laws, which were designed for the “accidents” that occurred in 20th
century factories, mines and workshops and not for the health consequences of poor job design,
bullying or stress.
New Zealand has a long history of ignoring the chronic health effects of work. In 2008, theNational Occupational Health and Safety Advisory Committee (NOHSAC) technical reportconcluded that New Zealand’s response is less favourable than in comparable countries, andresults in injustice, reduced rehabilitation and return to work prospects, inappropriate anddelayed interventions, increased costs to public health, and a lack of reporting and prevention
activity.8 In the current Occupational Health Action Plan, WorkSafe acknowledges that“workplace exposure to identified health hazards often ends up as a ‘poor cousin’ to injury
prevention and management of safety hazards.”9 Despite recognising the problems, successive
governments have decided not to address the issues due to “cost implications” and “policy
difficulties.”10 This pattern has sadly continued in the Working Safer reforms, withoccupational diseases excluded from the current Working Safer national targets because thisarea is “too difficult to monitor.”11 While the policy documents are full of high-sounding
statements on the importance of occupational health, there is little concrete change being
proposed. In a climate of waning political enthusiasm for health and safety there is a real riskthat chronic work-related health problems will be placed back in the “too hard basket.”12This paper proposes three areas of legislative reform needed to address New Zealand’s chronic
work-related harm problems. First, the chronic health effects of work need to be given equal
treatment to accidental workplace injury in the Accident Compensation Corporation (ACC)
cover provisions, including chronic work-related mental health problems. Second, New
Zealand needs to set regulatory standards for a healthy job, not just a safe one, including
prevention and monitoring requirements beyond “plant, substances, and structures”.13 Third,
the HSWA needs a different set of inspection and enforcement tools, including a new statutory‘right to request’ in relation to health and safety.

Reforms to ACC Coverage Provisions and Data Collection
The ACC scheme is a significant, but sometimes overlooked, part of New Zealand’s
occupational health and safety regime. Its “primary function” under statute is to “reduce theincidence and severity of personal injury” and to provide “a framework for the collection,
coordination, and analysis of injury related information.”14 Any meaningful attempt to address
6Latest estimate on the WorkSafe website as at 24 August 2015 <www.worksafe.govt.nz>.
Although there are no reliable figures on this, the National Occupational Health and Safety Advisory Committee(NOHSAC) 2004 figures were estimated at over 20,000.
8
Allen and Clarke National Occupational Health and Safety Advisory Committee Technical Report toGovernment No 11 Defining Work-Related Harm: Implications for Diagnosis, Rehabilitation, Compensation andPrevention (NOHSAC, 2009).
9Department of Labour Occupational Health Action Plan to 2013: Workplace Health and Safety Strategy for New
Zealand to 2015 (Originally issued December 2011 but revised) at 5.
10
NOSHAC Technical Report, above n 8.
11
MBIE Working Safer: Reducing Work-Related Fatalities, above n 4, at 20.
12
Independent Taskforce on Workplace Health and Safety, above n 2, at 32.
13
HSWA, s 36(3)(d).
14
Accident Compensation Act 2001, s 3.
7

88New Zealand Journal of Employment Relations, 41(2): 87-103
the “tragic paradox” of chronic work-related harm requires reform to the coverage provisionsof the ACC legislation. At present, a large number of work-related health conditions are
excluded from the cover of the ACC scheme. This leaves large numbers of workers without
support and assistance and creates unfair distinctions between workers in different industries.
Further, in New Zealand work-related harm statistics come almost exclusively from ACC
administrative data, which means where there is no ACC cover, there is no resulting data. The
lack of information on excluded occupational health conditions is a recognised problem by
WorkSafe15 and is part of the reason for the prior lack of policy response, and the exclusion ofchronic harm from the Working Safer targets. The current package of reforms anticipate ACC
and WorkSafe “working together” more to “coordinate” the data they collect,16 but do notaddress the fundamental issues of patchy and inconsistent occupational health coverage.
A Lack of ACC Cover for Chronic Work-Related Health Problems
The ACC scheme covers “accidents” as defined in s 25 of the Accident Compensation Act
2001 (ACA) and some work-related harms resulting from “gradual processes, diseases orinfection,” so long as they meet the test in s 30, or are included in the Occupational Diseases
Schedule. The schedule provides a list of classic occupational diseases such as lead or arsenic
poisoning, silicosis, a limited range of zoonosis diseases (from animals and carcasses) and alimited range of diseases from inhaling toxic substances containing dusts or fumes. Section 30
provides a test for any other gradual processes, diseases or infections (except mental harm). It
is essentially formulated to cover an “occupational disease”, being a disease contracted by theemployee who is employed in the type of work where the particular disease has been accepted
as more likely to occur, rather than simply a disease that can be factually shown to have beencaused by the particular person’s work. The difference may seem nuanced but matters a great
deal at the margins of cover, as discussed further below.
A particularly significant exclusion from cover are chronic mental health problems arising fromwork. Mental injury is defined in the ACA as “a clinically significant behavioural, cognitive,or psychological dysfunction.”17 Cover is limited to mental injuries that arise “because of aphysical injury”18 and those caused by certain criminal acts.19 Section 21B, inserted in 2008,
extended cover to work-related mental harm resulting from very narrowly defined single
incident trauma (for example, a train driver whose train hits a suicidal person and develops
post-traumatic stress disorder (PTSD)). There is no cover for chronic work-related mental
conditions, such as a police officer who develops PTSD due to multiple traumatic exposures,20
pain syndromes as a result of repetitive work,21 stress-related mental illnesses such as
depression or anxiety,22 or any stress-related physical illness, which at its most expansive
includes heart attacks, strokes and alcohol and other drug addictions resulting from stressful
work.23

15

MBIE Working Safer: Blueprint, above n 3, at 10.
At 32.
17
Section 27.
18
Section 26(1)(c).
19
Schedule 3 lists the covered sexual offences.
20
ETN v ACC [1998] NZACC 227; Gable v ACC [2003] NZACC 212.
21
Meikle v ACC [2008] NZACC 158; Teen v ACC and Telecom Ltd [2002] NZACC 244.
22
Nilson-Reid v Attorney-General in respect of the Director-General of the Department of Conservation [2005]
1 ERNZ 951 (EC); Rosenberg v Air New Zealand Ltd ERA Auckland AA311/09, 1 September 2009; Davis v
Portage Licensing Trust [2006] 1 ERNZ 286.
23
Attorney-General v Gilbert [2002] 2 NZLR 342.
16

89

New Zealand Journal of Employment Relations, 41(2): 87-103
Consequences of Exclusion from ACC CoverIf an employee suffers from an excluded condition caused by their employment they must sue
their employer to obtain compensation. The claim for compensation usually takes the form ofa personal grievance for unjustifiable disadvantage, (the disadvantage being the employer’s
failure to meet their health and safety obligations to the employee), breach of an implied termof the employment contract, or, less often, a tort claim for breach of statutory duty or
negligence. These actions require the employee to prove the employer’s fault, which the New
Zealand Court of Appeal has described as posing “formidable obstacles.”24 For many chronic
health conditions, especially those with long lead-in times, it is nearly impossible to prove therequired relationship of causation between employment and resulting illness. Time limitations
on bringing claims (90 days for grievances) also limit the potential of such claims for manyillnesses.
If successful, an employee’s personal grievance remedies are usually limited to the remedies
of reimbursement of lost wages (generally capped at 12 weeks’ ordinary time) andcompensation for “humiliation, loss of dignity, and injury to the feelings.”25 Personal grievancecompensation, however, is intended to be an award for the intangible harms of the employer’s
unjustifiable conduct, not to provide for treatment, ongoing income support for incapacity, or
rehabilitation. The sums awarded in these employment cases (including the contractual andtortious claims) are rarely generous and are often not equivalent to the compensation available
under ACC for a physical accident. If a worker is not an employee, then their options are limited
to claims of negligence, breach of contract (if the contract provides for health and safety), or
breach of statutory duty (assuming they are owed a duty).
In the absence of a successful compensation claim, a worker suffering from an excluded workrelated health condition has only the benefit system to fall back on. In 2013, research was
conducted into the socioeconomic impact of the difference in financial support between ACC
and Work and Income New Zealand on a group of people of a similar age and level offunctional impairment.26 The study concluded that those in the illness group (not covered byACC) had “considerably poorer socio-economic outcomes,” did not return to work as early,
and were the “most vulnerable for decline into poverty and ill health.”27
Codifying an Outdated Mind/Body Dualism
The blanket exclusion of chronic work-related mental health problems has a particularly
detrimental effect on attempts to improve occupational mental health, codifying an outdated
division between mind and body and potentially affirming the belief that mental healthproblems are less ‘real’ or ‘deserving’ than physical health problems. Advances in medical
science have resulted in the abandonment of a strict separation between mental and physicalillnesses.28 The Diagnostic and Statistical Manual of Mental Disorders, the bible of diagnostic
criteria for psychologists, concludes that the “term mental disorder unfortunately implies a
distinction between ‘mental’ and ‘physical’ disorders that is a reductionist anachronism of24

Attorney-General v Gilbert, above n 23, at [87].
Employment Relations Act 2000, s 123(1)(c)(i).
26
Susan McAllister and others “‘Do different types of financial support after illness or injury affect socioeconomic outcomes? A natural experiment in New Zealand” (2013) 85 Soc Sci Med 93.
27
McAllister and others, above n 26.
28
See discussion on the use of the term ‘mental’ in medicine in Robert Kendell “The Distinction Between Mental
and Physical Illness” (2001) 178 BJP 490 at 493.
25

90

New Zealand Journal of Employment Relations, 41(2): 87-103
mind/body dualism,” retained in the title only “because we have not found an appropriate
substitute.”29 A review of the growing literature on illnesses such as depression reveals
complex disease processes that defy a strict mind or body categorisation.30
Maintaining a legislative line between mind and body has also resulted in the judiciary being
handed the unenviable task of declaring which medical conditions are ‘mental’ or ‘physical’ inthe absence of medical consensus.31 The factual difficulty in distinguishing between mind andbody is highlighted in the ACC cases of workers suffering with chronic pain conditions, as inTeen v ACC and Telecom Ltd and Meikle v ACC. For example, consider the position of two
employees performing a data-entry job involving long hours of typing. Employee A develops
carpal tunnel syndrome in the right wrist and employee B develops a complex regional pain
syndrome in the right wrist. Both employees experience physical pain associated with thenerves in that wrist. Employee A’s condition is caused by pressure on the nerves. Employee
B’s condition is thought to be caused by a psychological interaction with the nervous systemthat causes the involuntary misfiring of pain signals to the nerves, rather than specific tissue
damage (although it may be triggered by specific tissue damage). Although there is arecognised psychological component to employee A’s condition, it is considered physical, andalthough there is a recognised physical component to employee B’s condition, it is considered
psychological by ACC, and thus excluded from cover.32 Leaving aside any question of whether
it is fair to treat employees A and B differently, the distinction between their conditions is, asa matter of fact, very difficult to draw.
The exclusion of mental health problems from ACC cover also has an impact on employers
operating businesses in industries where the work performed has a greater mental hazard profile
than physical. The lack of ACC cover has a direct consequence for the cost and managementof sick leave, employee absence, rehabilitation and return-to-work planning. Employers arealso exposed to civil liability for an employee’s work-related mental harm in a way they are
not with physical harm. The absence of standards and enforcement activity in this area33 hasresulted in little guidance for employers on what amounts to “all reasonably practicable steps”
in relation to employee mental health, meaning that it is both more difficult to prevent anddefend against employee claims if they are brought.
The Need to Address Work-Related Mental Health Problems
The lack of statistical information on excluded health conditions makes it hard to say how big
the problem of work-related mental health in New Zealand is. Helpfully, there is data from
Australia, where work-related mental harm is compensable and from which some extrapolationis possible.34 The Australian research concludes that “mental illness is now the leading cause
29

American Psychological Association Diagnostic and Statistical Manual of Mental Disorders (4th ed,
Washington DC, 1994) at Introduction 1.
30
See Brian Shenal, David Harrison and Heath Demaree “The Neuropsychology of Depression: A Literature
Review and Preliminary Model” (2003) 13(1) Neuropsychol Rev 33, and Dominique Musselman, Dwight Evans
and Charles Nemeroff “The Relationship of Depression to Cardiovascular Disease: Epidemiology, Biology andTreatment” (1998) 55(7) Arch Gen Psychiat 580.
31
See ETN v ACC and Gable v ACC, above n 20; Teen v ACC and Telecom Ltd and Meikle v ACC, above n 21.
32
Based on case law. For discussion of these disorders see Richard Mayou and others “Somatoform Disorders:Time for a New Approach in DSM-V” (2005) 162 Am J Psychiat 847.
33
The only prosecution in the area has been Department of Labour v Nalder & Biddle (Nelson) Ltd DC Nelson
CRN 04042500, 13 April 2005.
34
Safe Work Australia, The Incidence of Accepted Workers’ Compensation Claims for Mental Stress in Australia(April 2013).

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New Zealand Journal of Employment Relations, 41(2): 87-103
of sickness absence and long-term work incapacity in most developed countries,”35 costing
Australian businesses between $11-12 billion each year in absenteeism, reduced work
performance, increased turnover rates and compensation claims.36 The 2013 Safe Work
Australia report, The Incidence of Accepted Workers’ Compensation Claims for Mental Stress,
stated that such claims amounted to about 10 per cent of the total claims made, but were themost expensive, requiring longer periods of absence from work.37 The highest number ofclaims was for “work pressure related illness.” Harassment and bullying had the second highest
number of claims, and then “exposure to workplace violence.”38 Claims increased with worker
age, with men aged 55-59 and women aged 50-54 making the most claims.39 Younger workers
were more likely to be exposed to occupational violence and women were more likely to besexually harassed. Women accounted for 58.6 per cent of mental stress claims (women making
up only 33.6 per cent of total workplace injury claims).40 Those most at risk were drivers for
public transport, law and order occupations, those in caring and health professions andteachers.41
The rise in work-related mental health problems in Australia has been attributed to changes in
the labour market and the nature of work, with more employees involved in “mental” work.42
These changes can also be seen in New Zealand. According to the latest New Zealand Sectors
Report 2014, “services” make up 52 per cent of the total work force, with government,
education and health a further 28.1 per cent. This dwarfs the numbers of people employed inmining, primary industries, manufacturing and the booming construction sectors (35.5 per centcombined),43 which are the focus of occupational health and safety and injury prevention
activity. Service industries, education and health also generated 90 per cent of job growth in
2002–2012,44 suggesting a growing number of people potentially affected. The number of
employees in New Zealand performing what could be described as primarily mental work, andthus exposed to the hazards of that work, is considerable. While not all service, health andeducation sector workers will develop health problems, it is important to ask why these workers
are not entitled to ACC cover for the harms that logically result from the type of work they do.
The lack of ACC cover for these workers jars with the approach of the occupational health andsafety legislation. The Health and Safety in Employment Act 1992 (HSEA) and the new HSWA
provide for no difference in the employer’s general legal obligations to prevent mental or
physical harm to employees. Nor is there a difference in the legal obligations to prevent acute

35

Samuel Harvey and others Developing a Mentally Healthy Workplace: A Review of the Literature (A report for
the National Mental Health Commission and Mentally Healthy Workplace Alliance, November 2014).
36
See National Occupational Health and Safety Commission National Occupational Health and Safety
Commission Annual Report 2002-2003 (Canberra, 2003), and Anthony LaMontagne, Kristy Sanderson and Fiona
Cocker “Estimating the Economic Benefits of Eliminating Job Strain as a Risk Factor for Depression” (2011) 68
Occup Environ Med A3.
37
Safe Work Australia, above n 36, at 6.
38
At 8.
39
At 10.
40
At 9.
41
At 11.
42
See National Occupational Health and Safety Review Panel National Review into Model Occupational Healthand Safety Laws: First Report to the Workplace Relations Ministers’ Council (October 2008) at chapter 2 fordiscussion of the impact of changing labour market demographics on rates of work-related mental harm.
43
MBIE New Zealand Sectors Report 2014: An Analysis of the New Zealand Economy by Sector (April 2014) at
39-50.
44
At 39-45.

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New Zealand Journal of Employment Relations, 41(2): 87-103
or chronic occupational diseases. Since 2004, “harm” has been defined to mean “illness, injury,
or both” and expressly includes “physical or mental harm caused by work-related stress.”45
Applying the hazard management approach required under the HSEA (strengthened under theHSWA), the starting assumption is that each job has a set of hazards associated with the work
being done, or working environment, that are “an actual or potential source of harm.” 46 Thereis a set of identifiable hazards associated with building work that expose a builder to injuries,
such as falling from a ladder and breaking a leg, or crushing fingers between pieces of wood.
Likewise, a social worker working with children who have suffered abuse and neglect may
face risks that relate to the psychological impact of that work, be it exposure to traumatic
information, emotional exhaustion or the impact of threats of violence. It is, from theperspective of hazard identification, just as foreseeable that a social worker might develop a
stress-related illness as it is that a builder might fall from a ladder and break a leg. The presenceof the hazards impose the same legal obligation on the employer, yet the employees do notreceive the same access to compensation for the resulting harm.
Moving Beyond the ‘Accident’Chronic occupational health problems have had a difficult history in the ACC scheme.
“Occupational disease”, the term used for non-accidental work-related harm, became a casualtyof the type of argument used in the Woodhouse Report47 to extend cover beyond the workplace.
The Woodhouse Report asserted that accidental harms from whatever source were equallydeserving.48 An injury at work was seen as no different from an injury in a traffic collision, an
injury on the rugby field, or an injury sustained by tripping over the cat. What made harmcompensable in this analysis was not the circumstances of the cause, nor the breach of a legal
duty, but rather the harm and resulting incapacity itself. As the report stated, “[i]njury, notcause, is the issue.”49 Essentially, the same harms should receive the same treatment. The
problem with this analysis for chronic occupational health problems is that they were not thesame harms as the accidental injuries being compared. Occupational diseases werecompensated under the prior workers’ compensation regime because they were harms “arisingout of, or in the course of, employment.”50 It was not the harm, but the cause (employment)
which gave rise to compensation. This is perhaps the fundamental distinction between a‘workers’ compensation’ and an ‘accident compensation’ scheme. The purpose of workers’
compensation is to compensate workers harmed at work. The nature of the harm is lessimportant to determining entitlement than whether the harm was caused by work. The purposeof accident compensation is to compensate accidents and so the entitlement question focuseson whether the harm is an ‘accident.’ Occupational diseases are not accidents.
Although occupational diseases did not fit the new scheme, they could not be excluded fromit, as to do so would deprive workers of an existing entitlement. The original Accident
Compensation Act 1972 imported the occupational diseases provisions, as they stood, from theWorkers Compensation Act 1956, and described them as an “extension of cover”, making their
HSEA, s 2 “harm”.
HSEA, s 2 “hazard”.
47
Royal Commission to Inquire Into and Report Upon Workers Compensation (Owen Woodhouse Chair)Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (1967). Knownas ‘the Woodhouse Report.’
48
The Woodhouse Report, above n 49.
49
At 20.
50
See discussion in the Woodhouse Report, above n 49, at Part 4.
45
46

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New Zealand Journal of Employment Relations, 41(2): 87-103
status as an exception to the ‘accident’ focus of the legislation clear.51 The Woodhouse Report
anticipated ACC developing into a scheme of universal coverage for all the “hazards of modern
living,”52 including, at a later stage, all diseases.53 The occupational disease provisions in theoriginal ACC legislation were intended as an interim measure until the broader vision of thescheme could be realised. However, that did not happen. The 1989 attempt to extend ACC
cover to all sicknesses and diseases, following an Officials Committee Report54 and a Law
Commission Report (headed by Sir Owen Woodhouse)55 was scrapped by the incoming
National Government in 1990.56
The ACC legislation has since been re-enacted and amended many times with attempts toimprove the cover of chronic work-related harm,57 but provisions remain essentially the same,as an uneasy exception; a workers’ compensation provision inside an accident compensation
statute. The problem with an accident compensation scheme, as opposed to a workers’
compensation scheme, is that to ration cover when budgets are tight, the legislation must
distinguish between medical conditions. Because it is the harm itself, and not the cause, thatgives rise to compensation, lines must be created between different types of harms (physical ormental, accidental or disease) and these lines can be seen in the drafting of the current ACC
coverage provisions. For example, what is the difference in principle between catching a
disease from handling sheep carcasses and catching a disease from handling chicken carcasses?
Yet the eligibility test for cover is different. Why should contracting a disease at work “via anarthropod as an active vector” (for example, a mosquito carrying infected blood),58 or a dirty
syringe, be more compensable than contracting the same disease via infected blood directly?
Why should lung cancer caused by asbestos exposure be more compensable than larynx orovarian cancer caused by asbestos exposure? Why should an ambulance officer who develops
PTSD after witnessing a single traumatic event be entitled to cover, when an ambulance officer
who develops PTSD after witnessing 500 traumatic events is not? Why is the heart attack of
an office worker who lifts a box in the course of employment, but outside of his normal duties,
compensable, when a heart attack as a result of years of mental stress or heavy lifting at work
is not? The answer is that ACC compensation for work-related harm, although requiring theharm to be caused by work, is still primarily focused on the harm itself and not the workrelatedness of the harm.
To address this exclusion of chronic work-related health problems from ACC cover, theentitlement question needs to be reoriented from the nature of the harm to the causal
relationship between the person’s work and the harm they have suffered. One approach may
be to have a single legislative test for cover that applies to any health conditions that are caused
51

See Accident Compensation Act 1972, ss 65 and 67.
The Woodhouse Report, above n 49, at 34.
53
At 144.
54
New Zealand Officials Committee Review of the Officials Committee of the Accident Compensation Scheme(August 1986).
55
Three reports occurred in the period leading up to the Labour Government’s introduction of proposed reforms.
See Law Commission Accident Compensation Scheme: Interim Report on Aspects of Funding (NZLC R3, 1987),
Law Commission Personal Injury Prevention and Recovery: Report on the Accident Compensation Scheme(NZLC R4, 1988) and New Zealand Royal Commission on Social Policy April Report: Report of the Royal
Commission on Social Policy (1988).
56
See William Birch Accident Compensation: A Fairer Scheme (Supplementary paper to the Budget, 1991).
57
Compare reformulation in the Accident Compensation Act 1982, s 28 “disease due to nature of employment.”
The Accident Compensation, Rehabilitation and Insurance Act 1992 further amended and reformulated the test
for “personal injury caused by gradual process, disease or infection arising out of or in the course of employment”
in s 7. Section 30 was most recently amended by the Accident Compensation Amendment Act 2010.
58
Accident Compensation Act 2001, s 25(2)(c).
52

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New Zealand Journal of Employment Relations, 41(2): 87-103
by work, whether accidental or disease, acute or chronic, mental or physical. That entitlement
test also needs to be drafted widely enough to encompass a broader range of health effects
resulting from work. It may be time to accept that ACC is performing a workers’ compensation
function and to draft the parts of the legislation related to compensating workers towards thatfunction.
Data Collection Implications of Expanded ACC CoverAn extension of ACC cover to any health conditions, mental or physical, that are causally
related to work would result in a more comprehensive set of work-related harm statistics being
produced by ACC. A more comprehensive dataset would allow for greater research, planningand enforcement activity. Presently, in the absence of ACC data, researchers must either
extrapolate from international data or cobble together what they can from Notifiable
Occupational Disease System (NODS) notifications, coronial reports, wider public healthinformation and smaller surveys and research projects. The Report of the Independent
Taskforce highlighted the lack of available occupational health information, stating:59
The Taskforce is left with a profound unease about the quality of data in New Zealand. We are deeply
concerned that we do not have a clear, reliable picture of New Zealand’s performance.

The Government has responded to this by directing WorkSafe to improve data collection60 andthere is talk of resurrecting and reforming the voluntary NODS. This system has been in New
Zealand since 1992, and allows medical practitioners, or the individuals suffering an
occupational disease, to notify WorkSafe of their condition.61 However, even at the height ofoperation, the NODS only produced a few thousand notifications,62 and it fell into neglect as aresult of policy and internal changes, with its most recent figures at 270 notifications a year
(about 20 of which are for stress-related illnesses).63 The obvious problem with a voluntary
notification system is its voluntariness. Unlike applying for ACC cover, informing WorkSafe
of an occupational disease will not result in compensation for the worker, or funding for the
doctor, so there is little incentive to do it. Extending ACC cover would result not only in bettersupport to workers, but also in better information being collected.

Setting Standards for Healthy Work
The second important way in which New Zealand can start to address chronic work-related
harm is through the establishment of clear regulatory standards for healthy work. Regulating
for chronic work-related health problems requires two key shifts in thinking. The first shiftneeded is a move from regulating for ‘safety’ to regulating for ‘health.’ The second shift, andperhaps the more difficult one, is an acceptance of the need to regulate areas of the working
relationship that have not previously been regulated. Current standards tend to focus on safety
over health, and the risk of physical injury over the development of disease. There is aconspicuous absence of regulations, Approved Codes of Practice (ACOPs) and guidelines toaddress health effects that result from exposure to hazards that are not “plant, substances, and59

Independent Taskforce on Workplace Health and Safety, above n 2, at 9.
MBIE Working Safer: Blueprint, above n 3, at 20.
61
Occupational Safety and Health Service of the Department of Labour (OSH) An Introduction to the Notifiable
Occupational Disease System (May 1994).
62
OSH Report on the Notifiable Occupational Disease System to the end of June 1996 (1996).
63
Department of Labour Occupational Health Action Plan, above n 9, at 5.
60

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New Zealand Journal of Employment Relations, 41(2): 87-103
structures.”64 While there are many improvements to be made to New Zealand’s hazardous
substances regulation, this paper will focus on the need for standards that relate to healthhazards in the working environment, arising from worker interaction with people, poor job
design, excessive workload and stress. There are presently reforms in hazardous substances
regulation being made and it is the ‘non-substance’ exposures that are at the greatest risk ofneglect.
The Gap Between Act and Regulation
WorkSafe has issued the exposure drafts for the first phase of regulations under the HSWA.
The regulations are, in many ways, where the real detail of the Working Safer reforms will
emerge and where the real battle for chronic work-related health conditions needs to occur.
One lesson to be learnt from the HSEA is that the broad and progressive drafting of general
duties can be undermined by the absence of regulatory detail in what is required to comply. As
mentioned above, since 2004, the HSEA made explicit that occupational health hazards,
including mental stress, imposed the same duties on employers as hazards associated withphysical injury. The general duties did not distinguish between mind and body, or injury anddisease, but the regulations, guidelines and ACOPs certainly did. Anyone looking for concrete
direction as to what “all practicable steps” were required to ensure the health of employees
would be out of luck. One of the only guidelines available, Healthy Work: Managing Stressand Fatigue in the Workplace, was published in 2003 and outlined the available research andprovided some tools for responding to stress and fatigue.65 However, it was focused on
encouraging dialogue, rather than setting standards or requiring action. The document
explained its approach as follows:66
Creating healthy work is a shared, co-operative venture, where both employees and employers haveroles and responsibilities, including the maintenance of a balance between work and non-work
activities. It is not something that can be imposed – and it will require mutual understanding,accommodation, respect and the normal processes of give and take for its success.

This approach paints workplace health as ‘nice to have’ and is a far cry from the “every
employer must” approach taken in the asbestos and pipelines regulations.67 It is an approachthat can still be seen. In 2014, WorkSafe adopted the Preventing and Responding to Workplace
Bullying: Best Practice Guidelines,68 based on Australian guidelines. While the guidelines
document does represent a substantial move forward and provides useful resources for
employers in responding to bullying, it still encourages the taking of personal grievances andmediated settlement as its primary enforcement mechanism.69 It is a gentle ‘should’ document,
not a ‘must’ regulation, which tries to convince employers that tackling bullying is good forthe bottom line, and admits only a very begrudging role for WorkSafe. We would never accept
that sort of approach in other areas of health and safety. It would be incomprehensible to tellminers or forestry workers that their only option was to negotiate with the Person Conducting
a Business or Undertaking (PCBU) to provide a safe place of work.

64

Accident Compensation Act 2001, s 36(3)(d).
OSH Healthy Work: Managing Stress and Fatigue in the Workplace (June 2003).
66
At 2.
67
See Health and Safety in Employment (Asbestos) Regulations 1996, and Health and Safety in Employment(Pipelines) Regulations 1999.
68
WorkSafe New Zealand Preventing and Responding to Workplace Bullying: Best Practice Guidelines (February2014).
69
At 23.
65

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New Zealand Journal of Employment Relations, 41(2): 87-103
Section 36 of the HSWA requires a PCBU to maintain a “work environment that is without
risks to health and safety,” provide and maintain “safe systems of work” and “facilities for thewelfare at work of workers.”70 There is a large gap between the general duties set out in thelegislation and the draft regulations proposed to provide the details of what is required. One
example of this gap is in relation to health monitoring. Section 36(3)(g) of the HSWA requires:…that the health of workers and the conditions of the workplace are monitored for the
purpose of preventing injury or illness of workers arising from the conduct of the businessor undertaking.

This drafting is clearly broad enough to include health effects from exposure to psychosocial
hazards, unhealthy working environments and unsafe arrangements of work. Yet Part 4 of thedraft Health and Safety at Work (General Risk and Workplace Management) Regulations 2015,
which provides the detail of this duty, imposes health monitoring duties only where workers
are exposed to hazardous substances, and not to other hazards. While these exposure drafts arestill being developed and will hopefully change in their final form, it is essential that the new
regulations do not continue the old patterns of ignoring chronic occupational health problems.
Moving from Regulating for Safety to Regulating for HealthRegulating for chronic work-related health problems requires a shift in thinking from ‘safety’to ‘health,’ and an awareness that the nature of work, and the workforce, has changed a great
deal from that which existed when earlier regulations were drafted. New Zealand’s approachto health and safety regulation originates in the Factories Acts of the 19th century and continues
to carry the flavour of that time.71 The American industrialist Henry Ford is often quoted asasking “why is it every time I ask for a pair of hands, they come with a brain attached?” Workin the factories of the 19th and 20th centuries involved hands, more than brains, and,correspondingly, much of the earlier safety regulations were aimed at protecting hands(keeping them from getting caught in machines). As we move into the age of “lights-out”
factories without human workers, it is now very possible to buy as many pairs of mechanicalhands, unattached to brains, as you might need.72 Predictions that the majority of workers willsoon be replaced by robots73 may well be overstating things and oversimplifying the nature of
the labour market, but there is no doubt that the relationship between technology and work ischanging rapidly.
Forbes Magazine releases a top ten list of the skills most sought after by employers. In the 2015
list, all of these sought after skills were mental skills, with collaborating with others,
influencing people, and analytical skills dominating the list.74 Employers are hiring forworkers’ brains, more than for their hands.75 Ensuring the health of workers’ brains, sadly,
70

Sections 36(3)(a)(c) and (e).
Richard Johnstone, Elizabeth Bluff and Alan Clayton Work Health and Safety Law and Policy (3rd ed, Thomson
Reuters, New South Wales, 2009), see origins discussion in chapter 2.
72
See “Making the Future” The Economist (online ed, 21 April 2012), and Aaron Smith and Janna Anderson
Digital Life in 2025: AI, Robotics, and the Future of Jobs (Pew Research Centre Report, 6 August 2014) for
broader discussion on manufacturing trends.
73
See public discussion in Ashley Lutz “Three Reasons why Retail Workers Could Soon be Replaced by Robots”
Business Insider Australia (online ed, 14 March, 2014).
74
Susan Adams “The 10 Skills Employers Most Want In 2015 Graduates” Forbes Magazine (online ed, 12November 2014).
75
See Roger Bennett “Employer Demands for Personal Transferable Skills in Graduates: A Content Analysis of1000 Job Advertisements and an Associated Empirical Study” (2002) 54(4) J Vocat Edu Train 457.
71

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New Zealand Journal of Employment Relations, 41(2): 87-103
requires very different mechanisms than ensuring the safety of their hands. As set out above,
more than three quarters of New Zealand workers now work in services, education or health.
These workers deserve regulations designed for the work they do and the health problems thatarise from that type of work. The intention of this paper is not to diminish the need for
traditional safety regulations, as New Zealand’s injury and fatality rates are inexcusably high,but our failures in these areas should not excuse us from continuing to ignore chronic
occupational health problems in a changing world of work.
It is common for policy makers, including in the Working Safer documents, to fall back on theargument that regulating for healthy work is simply too complex. One common argument
advanced against creating standards for healthy work is that the present state of knowledge is
too uncertain and we do not really know what a ‘healthy’ job looks like, or what hazards may
result in negative health effects for workers. A second, related argument is that there is simply
too much variation in human response to stressors; what may be tolerable for one worker may
be overwhelming for another, and so regulating would be ineffective. The first argument,
although it sounds reasonable, has the least basis. Quite simply, over the past 30 years, a large
and increasing volume of research into worker health and the human effects of work has
emerged.76 We now have decades of research into the subject, including the large longitudinalstudies such as Whitehall II,77 comparative studies, animal studies on blood and brain cortisol
levels,78 neurological studies based on worker fMRI scans, countless case studies, small trials
and pilot studies, interviews and surveys. It is simply not true to say that we do not know whata healthy job looks like or which work and organisational practices negatively impact onworker health.
New Zealand can also look to other jurisdictions that are much further ahead in this respect. In
November 2014, Developing a Mentally Healthy Workplace: A Review of the Literature wasproduced for the Australian National Mental Health Commission and the Mentally Healthy
Workplace Alliance.79 The United Kingdom Health and Safety Executive (HSE) produced
Management Standards, which “cover six key areas of work design that, if not properly
managed, are associated with poor health and well-being, lower productivity and increased
sickness absence.”80 The HSE website states that employers following these standards are
adopting an approach that is considered “suitable and sufficient.” A similar approach has also
been taken by the HSE with musculoskeletal disorders and back pain.81 Guidance on whatamounts to healthy management practice in New Zealand would be a good place to start. There
are also a large number of resources available from the Canadian Council of Occupational
Health and Safety (CCOHS) on its Healthy Minds @ Work platform.82 There are considerable

76

For a good review of the literature, see Samuel Harvey and others Developing a Mentally Healthy Workplace,
above n 37.
77
The Whitehall II study was set up to investigate the causes of social gradient in morbidity and mortality, basedon a cohort of British public servants. The study has produced a large number of scholarly papers including, forexample, Stephen Stansfield and others “Work and Psychiatric Disorder in the Whitehall II Study” (1997) 43 J
Psychosom Res 1 at 73.
78
See Robert Sapolsky and Glen Mott “Social Subordinance in Wild Baboons is Associated with SuppressedHigh Density Lipoprotein-Cholesterol Concentrations: The Possible Role of Chronic Social Stress” reproduced(2013) 121 Endocrinology 5, original produced in 1986. There have been many studies by Sapolsky and others
following this significant article.
79
Above n 78.
80
HSE “Management Standards” (2007) <www.hse.gov.uk>.
81
Above n 82.
82
CCOHS “Healthy Minds @ Work” <www.ccohs.ca>.

98New Zealand Journal of Employment Relations, 41(2): 87-103
resources that New Zealand could draw on, as well as practical assessment tools andmeasurable standards that might be useful as the basis for developing a New Zealand response.
The second argument against regulation is that the variability of human response to healthhazards such as poor management, excessive workload and workplace violence is too great toallow for standards of healthy work to be set. While it is true that workers will react differently
to different exposures, this is also the case with physical injuries and hazardous substances.
Not all workers will fall from unsafe scaffolding or get their hands caught in unguarded
machinery. Not all workers exposed to asbestos will go on to develop cancer. This variability
does not prevent us creating a regime in which standards are set for scaffolding, machinery orasbestos, which represent the best available science at the time, and which can be consideredsafe for most workers. It is also argued that non-work causes of chronic health conditions are
too hard to separate from work causes, especially in cases of mental health, heart attack orcancer. Genetics, diet, lifestyle and early life exposure may impact on the development of adisease. This is also true for accidental injury and hazardous substance exposure. Childhood
asthma or smoking may make a worker more susceptible to developing occupational
respiratory diseases, but that does not prevent the development of standards for the inhalationof hazardous substances containing dusts or fumes. Being older and overweight may make aworker more likely to trip and fall, but that does not prevent us requiring safe lighting levels or
safety barriers around hazards.
Accepting the Need to Regulate for Worker Health and Wellbeing
The second shift in thinking required to regulate for chronic occupational health problems is toaccept the need to regulate working conditions that lead to poor worker health, including
potentially management practices, job design, working hours, social interaction in theworkplace, worker autonomy and participation, performance and remuneration systems. This
shift is likely to be much more difficult than determining ‘how’ to regulate for worker health.
There is considerable resistance to regulating for healthy work, as such regulation ventures into
fiercely guarded managerial prerogative and is perceived to create a level of state involvementin business decision-making that is unpopular in the current political climate. Addressing thechronic health effects of work, especially effects on mental health, also requires a recognitionof workers as human beings, complete with all the social, psychological and emotional needs
that humans have.
New Zealand’s approach to health and safety regulation reflects the wider political changes
that took place in the 1980s, when the HSEA was being drafted and redrafted.83 When it was
finally enacted in 1992, the HSEA was hailed as the “completion of ‘the triad’” by employers,
following the introduction of the Employment Contracts Act 1990 and the Accident
Rehabilitation and Compensation Insurance Act 1991.84 It was intended to move control of
health and safety from a paternalistic government to the hands of employers and managers inindividual enterprises. The Working Safer reforms continue to place primary control of healthand safety in the hands of employers, declaring that an overly prescriptive approach would
stifle the innovation and creativity needed to grow new businesses.85 However, as set out above,
regulating for worker health does not need to look like, nor should it not look like, 20th century
83

For discussion of this history, see Allen and Clarke Occupational Health and Safety in New Zealand: NOHSAC:
Technical Report 7 (NOHSAC, 2006).
84
See discussion in New Zealand Council of Trade Unions The Dupes of Hazard: A Critical Review of the Healthand Safety Act 1992 in Practice (CTU, Wellington, 1994) at iii.
85
MBIE Working Safer: Blueprint, above n 3.

99New Zealand Journal of Employment Relations, 41(2): 87-103
regulations for factories and mines. Regulations do not need to prescribe what each job must
look like, what tools and equipment must be used, or when and where a worker must performtheir tasks. Regulations for healthy work should take a very different form and should becoupled with a very different enforcement mechanism to traditional safety regulations.
New regulations could, for example, set out a list of the requirements for a healthy job(including that the job must have a fair and manageable workload, have appropriate training
and supervision, allow for variation in tasks and an appropriate level of decision-making, andso on). An individual’s job can be measured against this list of characteristics and the PCBU
can, based on this assessment, make changes to the job. If a job falls short, a worker can use
this assessment in combination with the proposed new HSWA tools to request that changes tothe job be made. Where the changes requested by the worker are “reasonably practicable”, the
PCBU would be obliged to carry them out in order to meet their primary duty under s 36.
Having a regulatory standard for a healthy job would require the health of workers to beconsidered in the process of job design or redesign, including organisational restructuring.
Ideally, it would make the consideration of worker health a clearer legal requirement when
making decisions about how work is to be performed, and assist in forcing the duties containedin the HSWA onto the boardroom table.

Reforms to HSWA Enforcement Machinery
The third reform proposed in this paper is the development of a new enforcement tool underthe HSWA. Aside from Nalder & Biddle86 in 2004, there has been little prosecution action in
relation to the types of chronic health problems that are the focus of this paper. It remains to be
seen whether the newly empowered regulator will take a stronger role in relation to
occupational health, but the exclusion of these conditions from the national targets and thefocus on ‘priority industries’ makes this seem unlikely. The previous position of the
Department of Labour in relation to mental health problems, stress-related illnesses and healthproblems resulting from the arrangement of work was to encourage mediation provided by the
Employment Relations Mediation Service and resolution through negotiated settlement. As
discussed above, in the absence of ACC cover, the personal grievances regime has also stepped
in to fill the void. This de facto enforcement role for the personal grievances regime looks set
to continue under the HSWA, if not expand further.
Enforcement by Prosecution or Personal Grievance
The WorkSafe New Zealand Act 2013 and the HSWA create a regime of increased regulator
power and tougher penalties. The goal of reducing fatalities and injuries by 25 per cent in 2020,
along with the appointment and training of additional inspectors, seems to have driven a
renewed emphasis on prosecution.87 However, an increased willingness to prosecute whereserious accidents have occurred does not necessarily translate into an increased willingness torequire employers to make structural changes to a person’s job in the name of mental health. It
is unclear what action the inspectorate will feel empowered to take when health and safety
problems relate to staffing levels and skill mix, rostering and hours, supervision andmanagement, or the alteration of remuneration and performance systems. Historically, there
has been a reluctance to ‘tell businesses how to run their organisations.’ This makes sense, as
86
87

Department of Labour v Nalder & Biddle (Nelson) Ltd, above n 35.
MBIE Working Safer: Blueprint, above n 3.

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intervening may be politically unpopular, complex and potentially embarrassing for thegovernment. Take, for example, the situation in public hospital nursing. The inspectors areunlikely to require hospitals to improve staff-to-patient ratios and reduce health practitioner
workloads in the name of safety as that would, almost certainly, require additional public healthfunding, alterations to the budget and to health policy.
The HSWA allows for private prosecutions under s 144. Private prosecutions provide unions
an option to pursue test cases in industries with high mental hazard profiles, but are unlikely tooffer a solution to New Zealand’s occupational chronic harm problems, especially given the
difficulties in proving causation ‘beyond a reasonable doubt’ and the associated costs. In all
likelihood the personal grievances regime, civil claims and mediated settlement will continue
to operate as the primary mechanisms for addressing chronic health problems caused by workand excluded from ACC. The role for private enforcement through civil claims may expand
further, with the potential for an ‘adverse action grievance’ and a rise in breach of statutory
duty claims on the back of a widening number of people owed a duty under the HSWA.
Subpart 5 of Part 3 of the HSWA creates offences in relation to adverse conduct, such as
dismissing an employee from employment, depriving a worker of benefits or refusing to renew
an engagement in retaliation for a worker’s involvement in health and safety action.88 It also
allows for civil proceedings under s 95 to be brought. However, s 95 excludes employees andtheir representatives from using this action. From the drafting of s 97, it would seem the HSWA
anticipates that adverse conduct would be dealt with by an employee taking a personal
grievance, but that this is confined only to a personal grievance and not to other types ofproceedings an employee may have available. The courts are yet to interpret s 97, but it does
appear that employees have a lesser ability than other ‘non-employee’ workers to take civil
proceedings to challenge adverse conduct by their employer. This provision departs from theapproach taken in the Australian Model Laws, which allowed for all workers, employees orotherwise, to bring proceedings under the equivalent section.89 Assuming the employee canprove a grievance, they would then be limited to the personal grievance remedies, as opposedto the wider range of remedies under s 95, and also be limited by the personal grievance
timeframes, usually 90 days as opposed to one year under s 95. The drafting of these provisions
seems to push yet another key health and safety protection into the personal grievance regime
and mediated settlement.
The second potential change in enforcement under the HSWA may be an expansion in claims
for breach of statutory duty. The shifting of duties from employer to PCBU has expanded thenumber of people owed duties under health and safety legislation and regulations. In a recent
article, Foster and Apps trace the use of breach of statutory duty claims under the Model Work
Health and Safety Law in Australia,90 offering insights into the way the claim may be used
under the New Zealand HSWA. Recent Australian decisions have held that safety regulations
may impose a higher standard of care than the general duty of care imposed on employers, andthat a finding of breach of statutory duty can be made without a finding of negligence. 91 This
was also decided in a recent United Kingdom case. In MacDonald v National Grid Electricity

88

Section 88.
Model Work Health and Safety Act, s 112.
90
Neil Foster and Ann Apps “The neglected tort – Breach of statutory duty and workplace injuries under the
Model Work Health and Safety Law” (2015) 28(1) Austl J Lab L 28 57.
91
Veljanovska v Verduci [2014] VSCA 15, 42 VR 222 at [28] and Pasqualotto v Pasqualotto [2013] VSCA 21 at[216].
89

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New Zealand Journal of Employment Relations, 41(2): 87-103
Transmission plc,92 McDonald sought compensation for lung disease caused by asbestos
exposure. His claim in negligence against his employers failed as the circumstances of his
exposure did not create a “foreseeable risk at the time,” but his claim that the occupier of theplant breached its statutory duty under the Asbestos Industry Regulations 1931 was successful
in the Court of Appeal. As Foster and Apps point out, the breach of statutory duty claim may
expand the situations in which liability may be established.93 For those cases excluded from
ACC cover, or those workers excluded from the personal grievances regime, the expanded
duties under the HSWA may offer a new option for seeking compensation. If new regulations
for healthy work are established, the options for workers affected by these health conditions
are also potentially increased.
Despite the creativity of New Zealand employment lawyers in moulding personal grievances,contract and tort actions to fill gaps in the law, these claims remain a fundamentally unsuitablemechanism for obtaining treatment, rehabilitation or compensation for work-related harm, orfor the enforcement of New Zealand’s health and safety standards. These actions simply were
not designed to do the job that ACC and occupational health and safety legislation should bedoing. An effective response to chronic occupational health problems requires reforms to ACC
coverage provisions and a better set of regulations and enforcement tools.
Is a ‘Right to Request’ Needed in the Health and Safety at Work Act 2015?
One possible way of addressing the enforcement difficulties above, while still working within
the overall framework of the HSWA, could be the introduction of a ‘right to request,’ similar
to the flexible work right to request under s 69AAB of the Employment Relations Act 2000.
With such a tool, a worker, health and safety representative or union is granted an explicit
statutory right to request certain actions on the part of the PCBU, which could only be refused
if the action requested was not “reasonably practicable.” For example, the worker(s) or theirrepresentative(s) might request:






Changes to work (including working patterns, job design or workload allocation) on the
grounds of worker health or safety;
Changes to a workplace policy, practice or decision on the grounds of worker health orsafety;That particular actions be taken to ensure a worker can perform their job without risk
to safety and health;
An independent review of a worker’s job or workload to assess whether the job iscapable of being safely performed by the worker; orThat tests or an independent assessment of worker health be carried out.

A right to request would be consistent with the primary duty of care imposed on a PCBU unders 36 of the HSWA. A PCBU has a legal obligation “to ensure, so far as is reasonably
practicable, the health and safety of workers,”94 and a statutory right to request simply createsa mechanism for workers to ensure those reasonably practicable actions are taken.
The power behind a right to request tool is that a PCBU refusing such a request exposes itself
to a claim that it failed to discharge its general duty of care under s 36. A PCBU decision to92[2014] UKSC 53, [2015] 1 AC 1128.
Neil Foster and Ann Apps, above n 92, at 59.
94
Section 36.
93102New Zealand Journal of Employment Relations, 41(2): 87-103
refuse could be subject to review, either by the regulator or the court in a public or private
prosecution. This process would allow the inspectorate to take a greater enforcement role inrelation to occupational health without the problems associated with the inspection of complex
psychosocial hazards. Essentially, an inspector could review a written request made by theworker(s) and the written response by the PCBU to assess its ‘reasonableness.’ This is a fareasier (cheaper and quicker) task than attempting to evaluate job design, management
structures and working patterns to assess whether they amount to a breach. The task ofassessing the reasonableness of a decision might also allow for judicial determination insituations where there has not been a notifiable event. For example, a decision that a particular
employer’s refusal to make changes in working practices was not a reasonable one might serve
as a precedent for that industry more broadly.
A statutory right to request, as opposed to merely an obligation to be consulted with, could
greatly strengthen workers’ abilities to address occupational health issues, either individuallyin relation to a specific job or collectively in relation to organisational policies that have anegative effect on worker health. Unlike a private prosecution or a breach of statutory duty
claim, workers do not have to sue the PCBU, prove fault or wait until someone is harmed, they
are enabled to request specific changes to ensure their health and safety and are provided withan assurance under legislation that the PCBU must make those changes unless they are
unreasonable or some other alternative can be negotiated between the workers and the PCBU.
A right to request also allows for an action which is not barred by ACC legislation, as it is notbased on seeking compensation for harm, but rather changes to working practices. A right torequest tool is directed at changing behaviour and prioritizing health and safety and could
potentially allow for more complex occupational health issues associated with shift work
patterns, poor job design or staffing levels to be addressed.

Conclusion
This paper argues that addressing the “tragic paradox” of New Zealand’s response to chronic
work-related harm requires reform in three key areas. First, the coverage provisions of the ACC
scheme need to be reoriented from the nature of the health problem to its ‘work-relatedness’and extended to cover a wider range of health conditions. An extension of cover would provide
financial support and rehabilitation to a greater number of workers and allow for better
information collection on occupational health. Second, this paper argues that a change inwillingness and approach to regulating for healthy work is needed. Setting standards for thehealth of workers’ minds is different to setting standards for the safety of workers’ hands. Thechanging nature of work and the workforce in New Zealand requires us to challenge ourassumptions and develop a new form of regulation for worker health. Thirdly, this paper argues
that to accompany a new set of standards, New Zealand needs to develop a new set of
enforcement tools. One such tool may be a statutory ‘right to request’ that enables workers todeal with hazardous work before it results in health problems.

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