Updated: Oct 28, 2021
On Monday 11 October 2021, the New Zealand Government announced an amendment to the current Vaccinations Order to include employees in the healthcare and teaching sectors.
The problem is that this announcement was not promptly followed with a formal Vaccination Order: either in draft or in final version.
New Zealand employees in the healthcare and teaching sectors are being provided with letters, which purport to propose to terminate their employment, on this Vaccination Order which does not exist.
It is my view that this is contrary to the rights to justice: people cannot seek legal advice on a document that does not exist. Legal representatives can only provide generic advice, based on what we know about the current Vaccination Orders.
The purpose of this post is to provide a shareable “how to”, on how to provide feedback to your employer.
Employment Relations Act 2000
The Vaccinations Order does not override the Employment Relations Act 2000. Employment rights and obligations still exist. Therefore, your employer is legally required to follow a fair and reasonable process:
The employer must sufficiently investigate the matter before taking action against the employee. If the employer does not have a copy of the Vaccinations Order, then it is acting prematurely, as it is not in a position to determine whether or not the employee is an affected person: section 103A(3)(a) and (b)
The employer must provide the employee with access to all relevant information relating to the proposed decision: section 4
The employer must provide the employee with a reasonable opportunity to respond to the information before taking any action: section 103A(3)(c)
The employer must genuinely consider the employee’s feedback before making a decision: section 103A(3)(d)
This means your feedback should firstly focus on obtaining this information, and ensuring that you have time to seek legal advice after the Vaccinations Order is published. This is important because the COVID-19 Public Health Response Act 2020 only requires 48-hours’ notice before any COVID-19 Order comes into force.
The Vaccination Order
UPDATE: I have since provided further detail on interpreting the order here.
The starting point is section 8: 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.
There are then three different interpretations:
Section 4 provides the interpretations for each:
Affected person means a person who belongs to a group (or whose work would cause them to belong to a group).
Certain work, in relation to an affected person, means work that the affected person carries out (whether paid or unpaid) in respect of a group specified in Schedule 2.
This isn’t an easy task: and you will want time to consider how any Vaccination Order applies to you. In this light it is important to highlight that “border worker” was never included in any version of the Vaccination Order. This is why you need a copy of the Vaccinations Order before you can provide feedback. You need to know whether you are an "affected person", whether you conduct "certain work" and whether you can apply for an exemption.
NOTE: I have previously written a blog post on vaccination policies (generally), which may also assist with your feedback.
New Zealand Bill of Rights Act 1990: Medical treatment
It is likely that the New Zealand Bill of Rights Act 1990 will apply.
See paragraph 66 of WXN v Auckland International Airport Limited: "I consider the arguments WXN makes about the New Zealand Bill of Rights Act 1990 seriously arguable."
See also paragraph 23 of WN v Auckland International Airport Limited: "The Authority/Court may consider any other factors it thinks appropriate to the decision-making. In this case, and as Ms Dunn accepted, those factors likely include regard to the underlying principles in the New Zealand Bill of Rights Act 1990."
What does this mean?
To my knowledge, the New Zealand Bill of Rights Act 1990 has never been an integral part of decision-making for an employer. In my view, this situation is different: the New Zealand Bill of Rights Act 1990 applies because the Vaccination Order confers a duty on PCBU's (employers).
We already know that the application of the Vaccination Order is a limitation on the right to refuse medical treatment.
See paragraph 72 of GF v Minister of COVID-19 Response: "employees who were faced with the choice of either being vaccinated or having their employment terminated suffered a sufficient imposition on their freedom of choice to engage the s 11 right"
This means that the employer will also be required to show that the limit to the right to refuse medical treatment is justifiable. In my view, even if the Vaccination Order itself is a justifiable limitation, it must also be shown that the employer's application of the Order is justifiable.
This may require that the Vaccination Order is interpreted in a way which is consistent with the rights and freedoms contained within the New Zealand Bill of Rights Act 1990: section 6 of NZBORA. This might be important where it is not absolutely clear whether you are an "affected person" or not.
In my view, however, this is a very similar process as what is required by the Employment Relations Act 2000.
Health and Safety at Work Act 2015: Risks of vaccination
I am aware of advice circulating that encourages employees to argue that the vaccination is not safe, and therefore may be contrary to the Health and Safety at Work Act 2015.
Personally, I do not recommend this approach.
To provide an opposing view, an employer is entitled to rely on Government advice and information at the time. The Employment Relations Act 2000 requires that an employer act fairly and reasonably in the circumstances.
The employer is entitled to rely on a currently lawful Vaccination Order, and they must comply with that Order. Your employer is not required to respond to:
Questions relating to whether the vaccine is experimental, or otherwise amounts to gene altering therapy.
Questions asking for the testing procedures of the vaccine.
Requests for the contents of the vaccine.
Requests for all adverse reactions associated with the vaccine.
The likelihood of death following the vaccine.
In being frank, our ACC scheme means that it is irrelevant to ask your employer to take responsibility for any adverse reactions. However, if you are particularly vulnerable or at risk of a reaction, you may want to discuss this with your employer, to ensure that your employer can manage a potential absence.
My fear is that feedback which asks the employer to disregard Government advice, will quickly alienate you as an employee: which will make your return to work difficult. You will be labelled as an “anti-vaxxer” and your employer will not look favourably on this.
The aim is to remain employed. You should therefore always consider what communications you are sending to your employer, and whether those communications create a barrier for your return to work.
Human Rights Act 1993: Discrimination
I am aware of advice circulating which discusses the issues of discrimination. In my view, it is unlikely that discrimination will be a sufficient ground of challenge on its own.
Section 29 of the Human Rights Act 1993 provides exceptions in relation to disability:
Nothing in section 22 shall prevent differential treatment based on disability where the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take this risk.
Therefore, the question falls back on any Vaccination Order or health and safety assessment:
Is there a risk of harm to that person or to others?
Is is reasonable to take this risk?
Follow the Updates
The latest Vaccination Order can be found here.
The list of amendments to the Vaccination Order can be found here.
The list of all COVID-19 Orders can be found here.
The progress of the COVID-19 Public Health Response Amendment Bill (No 2) 2021 can be tracked here.
The list of all Bills presented to the House of Representatives can be found here.
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