Lawyer Shelley Kopu gave a moving address at the recent Employment Law Conference in Wellington. During Shelley’s address regarding the topic “Does the manner in which we practise employment law reflect and honour a multi-cultural society?” I was personally moved by her insightful and thought provoking presentation.
Shelley Kopu posed the following question: if the Employment Relations Act 2000 (Act) centres itself upon the overarching importance of relationships, why do Tikanga Māori and Te Ao Māori, which place high value on community and solidarity, not form a part of this consideration?
Tikanga Māori: the correct way of doing things in Te Ao Māori; that is, a Māori worldview. Referencing key values, rules and concepts such as Kotahitanga (solidarity) and Whanaungatanga (the protection of and obligations in relation to kinship), Tikanga is both flexible and principled, with the appropriate application dependent on the circumstances.
Given issues in the workplace can often arise from interpersonal issues, addressing them from the perspective of consciously seeking to restore the Mana (dignity, character, prestige) of both parties when an issue has arisen – without taking it from or depleting the other person’s Mana – could form the cornerstone of addressing conflicts or issues in the workplace.
The lack of Tikanga in employment law is surprising, given New Zealand’s renewed commitment to Te Tiriti o Waitangi and the fact that, since the late 90s, the Law Commission has recognised the need to actualise the Treaty partnership within existing laws and constitutions. The Resource Management Act 1991 now references the concept of Kaitiakitanga (guardianship), and the Oranga Tamariki Act 1989 was recently amended to acknowledge the key role Whakapapa (genealogy) and Whanaungatanga have to play in the wellbeing of children and young persons.
Do such amendments signal a move towards embracing Tikanga in a wider range of law? Employment Court Chief Judge Inglis considers that it should.
In Judge Inglis’ address at the New Zealand Industrial and Employment Relations Conference in March 2019, she pointed out that the right to have traditional values included in State-supported processes is enshrined in The Declaration on the Rights of Indigenous Peoples, to which New Zealand is a signatory – yet consideration of Māori values in an employment context are few and far between. She uncovered only two in the Employment Court:
- In Good Heath Wanganui v Burberry [2002] ERNZ 668, the defendant applied for leave for a kapa haka festival as she had routinely done for the past 17 years. Her leave was denied. She took two days off without authorisation and was summarily dismissed. Judge Shaw stated that “the fact that an employee is Māori and is working in a Māori setting should have been sufficient to alert [the employer] to a need for an appropriate procedure”.
- In Taiapa v Te Runanga O Turanganui A Kiwa Trust t/a Turanga Ararua Prviate Training Establishment [2013] NZEmpC 38, the Court found that the employer could reasonably have been expected to approach the employee’s illness in a culturally appropriate manner.
These cases call attention to the wider issue of diversity and cultural competency, where a lack thereof can lead to misunderstandings about employee or employer behaviour and a consequential breakdown in the employment relationship. Judge Inglis noted that the Act already contains a duty of good faith, but some proponents argue that this requirement should extend to include cultural awareness, as this would increase communication and empathy between employers and employees, allowing for better fulfilment of good faith obligations.
Other Tikanga values of applicability referenced by Shelley Kopu included:
- Manaakitanga (hospitality): the responsibility advocates, lawyers and employers have to manaaki (support) their client or employee and ensure their actions align with best practice.
- Tino rangatiratanga (sovereignty): the right of each employer and employee to determine their course of action.
Naturally, such inclusion may raise questions in relation to authenticity and legitimacy. If Tikanga were to be implemented, workplaces would have to commit to internal practices and policies which align with Tikanga, and encourage diverse leadership. Further, employers would have a duty to ensure there is no overreliance on Māori staff in its preparation and execution of such practices and policies.
There have been no explicit discussions regarding the incorporation of Tikanga at the time of writing, but that does not preclude the possibility. Whether the government (or alternatively, the courts) will move to actively incorporate Tikanga Māori into the sphere of employment law remains to be seen – but this would see a real commitment to Te Tiriti o Waitangi.
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