It is my view that the application of the Vaccinations Order, or the imposition of vaccination policies, amount to a change in the terms and conditions of employment: establishing the commencement of a restructure process.
This is hotly debated, and I hold the minority view amongst my legal peers. However, that's not uncommon in my representation. I held the minority view when I said that the wage subsidy did not change employment law obligations. The truth is: so long as I continue to predominately represent employee's and their interests, I will always hold the minority view.
Over the past eight months, I've grown a thick skin as I've learnt to withstand considerable scrutiny for simply facilitating the administration of justice. The ironic thing is: I was vaccinated as part of the Group 3 rollout. I am one of those vulnerable people that mandatory vaccinations are meant to protect. Contentious issues do not scare me: and this is perhaps one of the most unspoken contentious issues.
Why?
Because it'll cost the Government and other large employers a significant amount of money in redundancy compensation.
Termination of Employment
The Vaccination Order imposes an obligation on the employer to ensure that certain work is completed by affected people who are vaccinated. By virtue, this requires that the employer either introduce a policy, or change the terms and conditions of employment.
In the first instance, I continue to ask: how did their employment end?
If we consider this a lawful and reasonable instruction, then the termination of employment must be justified on 'serious misconduct' for failing to follow that instruction. This is something I cannot accept: because while it may be true that the Vaccinations Order is a justified limitation on the New Zealand Bill of Rights Act 1990, on the other hand, a person cannot be punished for exercising their right to refuse medical treatment.
Therefore, the instruction cannot be reasonable. In the first instance, it amounts to coercion, enough to limit the rights and freedoms contained within the New Zealand Bill of Rights Act 1990. In the second, it has the consequence of imposing fault on a person for exercising their rights and freedoms contained within the New Zealand Bill of Rights Act 1990.
This is differentiated from the New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Limited case, which related to the imposition of mandatory drug testing policies. In this case, the Employment Court considered the two alternative positions: a lawful and reasonable policy, or a change to the terms and conditions of employment. However, the important difference rests on the fact that drug testing was not found to be an imposition or limit on the rights and freedoms of the New Zealand Bill of Rights Act 1990.
It is my view that the while these employees have had their employment terminated as a consequence, it is a "no fault" situation: akin to Redundancy.
Definition of Redundancy
There is no statutory definition of Redundancy in New Zealand. However, In the leading decision in this area, GN Hale & Son Ltd v Wellington Caretakers etc IUW, Richardson J observed that:
Redundancy is a difficult area of labour law as it is of industrial relations. It raises considerations of economic efficiency, individual autonomy and social justice.
The employees affected have done no wrong. They are to be regarded as competent and loyal. As we have come to see in recent years, redundancy may have a devastating and lasting social and economic impact on them and their families. But the employer is also in a difficult situation. In the circumstances that the employer faces the employees are considered to be surplus to the requirements of the business. That may be due to a decrease in business activity, perceived advantages of greater mechanisation and technological change, deployment of capital resources in different ways, or reorganisation of business operations with a view to enhancing profitability, or reducing losses either generally or in selected areas
It is my view that that, for the purposes of the present situation, the relevant theme is that a role, or roles, are subject to change due to some perceived advantage. You can consider this in two ways:
The advantage of the employer complying with the Vaccinations Order; or
The advantage of preventing, and limiting, the risk of the outbreak and spread of COVID-19.
Vaccinations Order
The COVID-19 Public Health Response (Vaccinations) Order 2021 was created under section 11(1)(a)(v) of the COVID-19 Public Health Response Act 2020. This means, that it is an Order which requires a person to refrain from carrying out specified activities (for example, specified activities involving close personal contact) or require specified activities to be carried out only in any specified way or in compliance with specified measures.
"An affected person must not carry out certain work unless they are vaccinated"
"A relevant PCBU must not allow an affected person (other than an exempt person) to carry out certain work unless satisfied that the affected person is vaccinated."
The Vaccination Order requires that the employer change the "way" that "certain work" is completed, or changes the compliance requirements of "certain work". As recently held by the High Court in Four Aviation Security Service Employees v Minister of COVID-19 Response:
Section 11(1)(a)(v) is specific in being directed to particular activities, and gives the example of activities involving close personal contact. It then contemplates orders that those activities only be undertaken “in any specified way or in compliance with specified measures”. It seems to me that “activities” must include those undertaken by employees in certain occupations. Moreover the “way” those activities are to be conducted, and the “measures” that must be complied with, are deliberately formulated by Parliament in reasonably open-ended terms. The limits on the scope of the exercise of such power arise from the requirement under the first part of s 11(1)(a) that the actions must be likely to contribute to preventing the risk of the outbreak or spread of COVID-19. Provided that the “way” of undertaking the activities, or the “measures” specified for their undertaking, are likely to contribute to preventing the risk of outbreak or spread, they are within the empowering provision and can therefore be regarded as properly imposed.
The Vaccination Order imposes an obligation on the employer, to change the way in which "certain work" is completed, for the advantage of preventing, and limiting, the risk of the outbreak or spread of COVID-19.
By virtue of this obligation, the employer then changes the way in which that "certain work" is completed, for the advantage of being in compliance with the Vaccinations Order: thereby avoiding risk of fines and/or penalties.
The work has changed.
An Analogy: Employment Advocate v Employment Lawyer
I am tired of hearing: "This isn't a redundancy because employer's aren't required to reduce the number of employees."
Redundancy is about having a staff surplus: however, a staff surplus doesn't always result in a reduction in the number of employees.
I am an employment advocate. In accordance with the Employment Relations Act 2000, any person may provide advice and representation in the employment jurisdiction. This means I do not need to hold a practicing certificate as a lawyer.
For hypothetical purposes, let's say I have two employees: one employee has been admitted to the High Court of Barristers and Solicitors, and one employee does not have a law degree.
The Government then make a change to the Employment Relations Act 2000: removing the right for any person to represent in the employment jurisdiction. This would then mean that a person could only provide legal advice and legal representation where they held a practicing certificate as a lawyer.
In response to the law change, I then apply for my practicing certificate, and I essentially turn Legal AF Limited into a law firm. I have a law degree, and I am an admitted barrister and solicitor of the High Court. However: I now have two "employment advocate" roles which need to be restructured into two "employment lawyer" roles. One of my employees has a law degree and has been admitted: meaning the process for them to obtain a practicing certificate is minimal. They should complete this process before the hypothetical law change.
However, my other employee does not have a law degree. This means it would take a number of years of study before they are able to fulfil the tasks and duties required of the "employment lawyer" position. Unfortunately, I would commence a restructure process with this employee due to their inability to be an "employment lawyer." Subject to any redeployment opportunities, they become surplus to my requirements: creating a redundancy situation.
I am not reducing the number of employees.
I am still required to fill that role.
Restructure processes are about roles, however, redundancies are about people. If that person becomes surplus to requirements as a result of a restructure process, they become redundant.
Contractual Entitlements
Redundancy compensation is not a legislative requirement of employment: however, it is featured in many collective employment agreements, and for many employees who are on very old individual employment agreements.
Your employment agreement may refer to different terms: however, the fundamental premise of redundancy has been met (in my view). As a result of this change in the way in which certain work is completed, the employee is surplus to requirements: creating a redundancy situation.
If your employment has been terminated in accordance with the Vaccinations Order, or otherwise a vaccine policy, you have six years to make a claim for breach of employment agreement (failure to pay redundancy compensation).
Employment Relations Act 2000
It is my view that this argument is consistent with the Employment Relations Act 2000. The purpose of redundancy compensation is not to reward or incentivise a person for exercising their right to refuse the vaccine: the purpose is to recognise that this is a "no fault" situation, and to provide an additional safeguard for vulnerable employees.
Redundancy is a safety net: Employers are not as quick to dismiss redeployment opportunities where there is the threat of redundancy compensation, and where redundancy is genuine, the employee receives some compensation to assist them in the next phase of their working life.
Where are the unions?
I will preface this by stating: I am supportive of true union movements. However, New Zealand unions are a far cry from what they used to be, or what they should be. Whatever collective power they hold, is stamped down due to their heavy involvement in politics.
It is widely joked that the union movement is the stepping stone into the Labour Party.
This week we read in the news that the Labour Party changed its rules to elect a new leader. What you may have missed, was that under the previous rules, unions had a say in who the leader of the Labour Party would be: amounting to 20% of the total vote.
It needs to be said: Our unions are no longer "pro-employee". They are "pro-labour". One only needs to skim the documents released through various Official Information Act requests to understand the level of union involvement in the creation and implementation of the Vaccinations Order.
The New Zealand Amalgamated Engineering Printing and Manufacturing Union was not exclaiming support for recreational drug use when it commenced action against Air New Zealand. It was not promoting unsafe working environments. It was ensuring employee rights, and ensuring the correct interpretation and application of the Collective Employment Agreement.
The law is the law to protect fundamental rights and freedoms: it is not a question of morality.
Unions can be "pro vaccine" while being "pro employee." It is in the mutual benefit of all employees that there is certainty and clarity in:
The interpretation of the Vaccinations Order.
The lawfulness of vaccination policies.
The application of the Collective Employment Agreement.
These are questions which can be answered without taking a position on being pro- or anti- vaccine. However: doing so would undermine the Labour Government's COVID-19 response.
Go figure.
Conclusion
There is a very real argument here: and it's an argument that will be progressing to the Employment Court in good time.
I did not want to be the first representative to judicially review the Vaccinations Order: however, after months of referring clients, it became evident that there was a serious lack of willingness amongst the legal community to facilitate the administration of justice.
I do not want to be the representative to appear before the Employment Court, asking it to interpret a collective employment agreement agreement: however, it is evident that unions are not willing to ensure the rights and freedoms of employees.
I might be wrong: however, it is a question that must be tested.
The only barrier to success, is the fear of failure.
The best case law is often created from lost cases.
Legal AF Limited t/a Ashleigh the Advocate
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