Updated: Dec 18, 2021
I am continuously asked about the validity of legal information and advice provided by others.
I have been reluctant to post about this, because I don't want to create waves: however, the people are vulnerable and they deserve honest advice.
I understand the nature of legal advice: there is always room for interpretation (and misinterpretation). There will always be disagreements, as we sit in the "grey" area of law.
However, this is not about being in agreement or not: this is blatantly legal misinformation. In my view it is dangerous, and employers risk significant fines and penalties.
Please please please: if the legal community could step up and collectively address this legal misinformation, it would not only assist the people, but also the integrity of our legal system.
Please note there is a difference between the Vaccinations Order and a self-initiated vaccine policy.
You cannot avoid your obligations by becoming a private society
You cannot avoid the obligations of the Protection Framework or Vaccination Order by becoming a “private society” and creating a contract with your customers. The New Zealand Government can, and does, interfere with contracts. This is the very basis of the Employment Relations Act 2000, the Minimum Wage Act 1983, the Wages Protection Act 1983, and other laws governing contracts between employees and employers.
In addition, the Contracts and Commercial Law Act 2017 provides provisions relating to “illegal contracts.” An illegal contract is a contract governed by New Zealand law that is illegal at law or in equity. These contracts are governed by New Zealand law: you are operating a business in New Zealand.
We also don’t have private societies in New Zealand. If you are operating a business, the structures are either a Limited Liability Company, a Co-Operative Company, Trust, Charities, Incorporated Societies, Limited Partnerships.
Honestly: if there was a way to operate without Government intervention, Maori would have been operating in communities in this way for decades. This isn't the first time the Government have sought to limit rights. I guarantee some exploitative employer would have attempted this to legally pay less than the minimum wage. If it was possible, someone would have already tried it, and would have gone to Court for it.
You cannot redefine your business to avoid the Orders. The Protections Framework has a broad definition for what constitutes a business or service:
a voluntary or not-for-profit service; and
a private sector business or service; and
a public sector business or service; and
a business or service that provides space for other businesses or services to operate within (for example, shopping malls and marketplaces); and
a business or service that provides facilities or venues for events or activities if people pay to attend an event or participate in an activity or pay to hire a facility or venue; and
the playing of sports professionally or semi-professionally
You cannot apply for a service exemption
You cannot apply for a service exemption if you are a “food and drink business or service”, a “close proximity business or service” or a “gym.” Service exemptions are only provided to prevent significant disruption to essential supply chains, health services, the essential operations of a corrections prison, the operation of learning in registered schools.
Your only option is to operate as a non CVC compliant business: even if you have a valid medical exemption, you are still a non CVC compliant business or service.
Clause 9 does not provide a never-ending exemption
See video here
Clause 9 of the Vaccinations Order provides that the relevant chief executive may authorise affected persons not vaccinated to carry out certain work.
This clause applies to certain work that is unanticipated and necessary and time-critical and cannot be carried out by a person who is vaccinated and must be carried out to prevent the ceasing of operations.
In the first instance, if we break down each of the requirements, it is an insurmountable legal hurdle.
1) Unanticipated: it will be difficult to justify that the work was "unanticipated." If you have sought legal advice, it means you are anticipating a situation. If you have a "Clause 9" notice on your window, it means you have anticipated for certain work to be completed.
2) Necessary: It would be easy to justify most work as being necessary: however, this is only one element of five.
3) Time-critical: The work that is being required to be completed must be of absolute urgency, that there is no time to ensure that the person conducting the work is vaccinated.
4) Cannot be carried out by a person who is vaccinated: You will also need to justify that the work cannot be carried out by a person who is vaccinated. This means you will have needed to advertise for the position, and have been unable to recruit a person who is vaccinated.
5) Prevent the ceasing of operations: The work must be carried out to prevent the ceasing of operations. This implies that there has been a threat to the business operations that needs to be addressed immediately. It is not enough that an employee's role is integral to the business, because their work isn't done "to prevent the ceasing of operations."
Honestly, in my view, this is designed to cover a situation where, for example, a car plows through the front window of a hospitality business. The business is desperate to continue operations, and is required to urgently contract unvaccinated workers to assist with the removal of the vehicle and replacement of the shop window.
In the second instance, even if the above advice was incorrect, any use of Clause 9 does not avoid the requirements to be either "CVC-compliant" or "non CVC-compliant" in accordance with the Protections Framework. A company that has an unvaccinated employee would be required to operate on a non-CVC compliant basis, unless the employee has a medical exemption under the Vaccination Certificate Order (and is thereby CVC compliant), or otherwise the business has an exemption under the Protections Framework.
Common law does not override the Protections Framework
Nothing in common law will override an express statute of the New Zealand Government. Many common laws have been expressly incorporated into statute, and common laws are only otherwise applicable if expressly provided in the relevant legislation. In this instance, the Contracts and Commercial Law Act 2017 does not provide an ability to contract out of law.
New Zealand does not have mandates
See video here.
We do not have mandates in New Zealand, and any video you’ve seen isn’t relevant. The laws that are being passed are “Orders in Council.” The Vaccinations Order’s full title is the COVID-19 Public Health Response (Vaccinations) Order 2021, which is created by virtue of the COVID-19 Public Health Response Act 2020.
The Orders are enforceable
Yes: shoot the messenger.
This has apparently been confirmed by a "QLD" barrister. We are not QLD. We are not Australia. Their laws don't apply to us.
I would never give advice that something would obviously be "thrown out" and neither would any barrister or solicitor. This picture is often sent alongside a claim that a case has been thrown out before.
Every judicial hearing must be recorded. Ask for the court record. Ask for court documents. Don't believe it because someone said an unnamed lawyer verified it. Follow NZ COVID-19 related judgments here.
Parliament is sovereign. Like it or lump it, this is the way. The only reason the Vaccination Order could be set aside by a New Zealand Court, is because Parliament expressly allowed for it in the COVID-19 Public Health Response Act 2020. However, to put matters in perspective, in my research I have not found an instance in either New Zealand or the entire commonwealth, where an Order in Council has been set aside by the judiciary.
Risk assessments aren't required under the Vaccinations Order
See templates here
See point 3 of this template.
If you are covered under the Vaccinations Order, your employer is not required to conduct a health and safety risk assessment, and no risk assessment will save your role.
This is because, if Parliament had intended for such an exception, it would have expressly allowed for it in the Vaccinations Order. Like it or lump it, this is the way.
If the Vaccinations Order intended for mandatory vaccinations only to be considered where there were no other alternatives available, it would have expressly provided. However, instead, it expressly provides: "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."
If you are an employee of a business who is opting to be CVC compliant, the first step is to ask whether, or not, they have interpreted the Vaccinations Order correctly. This will be important when considering the definition of a "close proximity business or service", which is vague and open to interpretation.
If your employer is interpreting and applying the Vaccinations Order correctly, the process will be similar to a restructure process:
What is the rationale for the change?
Why can’t the business operate alternatively between being CVC and non CVC compliant?
Can the business be restructured to allow for greater efficiency, while keeping your role?
Can your role be restructured to allow your continued employment?
Your employer is entitled to rely on Government health advice
See templates here
See point 12 of this template.
The test in law is that your employer acted fairly and reasonably in the circumstances, at the time which the action or dismissal occurred. It has been frequently held that an employer is entitled to follow the law.
It is my view that an employer is also entitled to adopt the Government's advice relating to vaccine efficacy: especially as it is the Government who will be using this same health advice and applying it in a Health and Safety (WorkSafe) context. It may be true that this advice changes, however, the test is what was known "at the time."
If you want to challenge the efficacy of the vaccine, the employment jurisdiction is not the space for it: you will want to take this as a matter to the High Court.
I have seen the templates being provided to employees. I have to be absolutely honest: I will not represent an employee who has used this template. This has been a difficult moral and ethical choice for me, because I know that the people are vulnerable. However, my reasons are:
If a group or organisation are providing these templates, they should be prepared to ensure you will be able to engage legal representation if you require. With each template I provide, that is the obligation I put on myself, because it is my template and my advice. This is how you ensure information is accurate: when a group are prepared to fight for it.
I am vaccinated. It would be unethical for me to represent, and to continue to advocate against vaccine efficacy. I believe this puts me in a conflicting situation.
I do not agree with the legal basis to these templates, and believe that they are actively destructive to the employment relationship. If you use this template, you are immediately raising a flag that you are an "anti-vax."
It would be disingenuous for an employee to completely alter their position and change their 'tact' with regards to feedback.
I cannot take this template to the Employment Relations Authority or Employment Court, and risk that it will be associated with me and my advice to a client.
I also personally find it difficult to represent a client who thinks that I am a risk to their health and safety because I am vaccinated. I have never viewed any of my clients that way. Even before I was vaccinated, I represented in person, and given talks; all without considering whether or not there was any risk to my safety. I do not want to contribute to an "us" and "them" culture, and I also don't want to the subject of it.