The case for whistle blower protection legislation

The recent case of Joanne Harrison, a lady who has been convicted of taking $725,000 from the Ministry of Transport and has gone to jail for significant fraudulent activity, had another revelation the other day. It was revealed that a few days after she was told she was under investigation and her access to the building where she worked would be revoked, Ms Harrison tried to enter the building to interfere with documents. Upon failing to get in she asked a contractor to access the building for her.

The employees who blew the whistle on Ms Harrison and her deceit were allegedly not treated well by their employers according to New Zealand First leader Winston Peters. Mr Peters. Labour M.P. Sue Moroney also questioned the treatment of two people who were thought to have raised red flags, and then found themselves jobless just a couple of months later in a review Ms Harrison had a hand in.

It is true that whistle blower protection legislation already exists in New Zealand. However it is undermined by a grossly inadequate set of protections for anyone who feels the need to report serious wrong doing. It is totally unenforced to the point that very few people – if anyone at all – have actually felt safe enough to come forward under the legislation and report serious wrong doing in their place of employment. And it is also under resourced in terms of help that can be offered those considering reporting serious wrong doing.

Insider activity can devastate companies. Of that there should be no doubt. But what happens when the people who see the most damaging activity are too intimidated to report it? What happens when a culture of fear and/or corruption that makes it too dangerous to report such activity, or the activity is reported by people to their superiors, who then sweep it under the rug?

Despite corporates having practices in place with the intention of making the process safe and easy for such complaints to be reported, there is still the risk that someone in a position of authority, perhaps with undeclared interests to hide, will clamp down on a whistle blower. They will attempt to shut them down through bribes, intimidation and harassment – it can be called bullying, but if the attempts at shutting a complainant succeed it is also an attempt to pervert the natural course of justice.

A whistle blower might continue working at the place where the activity is happening. Why should they leave or be made to fear coming to work each day, fear doing their job, because someone in a position of authority is corrupted?

New Zealand does not necessarily need a General Auditing Office like the United States, but it does need an agency where qualified people with impeccable ethics, acting in a neutral manner are able to receive a complaint, disseminate it and determine whether the company, person or people in question have a case to answer. It needs to be networked with other agencies, such as the Serious Fraud Office, the Police, and others who can investigate and if necessary, bring about a criminal prosecution.

Because whistle blowers are not going to be potentially at risk when they blow the whistle, there needs to be protections in place. In the same way the police protect witnesses to violent crimes or gang violence from intimidation and harassment, there needs to be appropriate protection for whistle blowers from the moment they report the offences through to them either being dismissed or the perpetrators found guilty and sentenced. Even then they might not be safe if in the course of prosecuting, associates of the accused or others scared that their own misconduct might be exposed, decide to track down the whistle blower.

Celebrating Labour Day in New Zealand

On 8 February 1840, two days after the Treaty of Waitangi was signed by Commodore James Hobson on behalf of Queen Victoria, a ship named Duke of Roxburgh arrived at Britannia Beach (now Petone)in Wellington. On board was a man named Samuel Parnell, an immigrant from London.Also on board the ship was a man named George Hunter, whom asked Mr Parnell to build a store for him shortly after they reached New Zealand.

Mr Parnell agreed to Mr Hunter’s request, but laid down the conditions upon which he would be prepared to work. No more than eight hours a day, observing the by then already well known slogan of Robert Owen:

Eight hours work; eight hours recreation; eight hours rest

Mr Hunter and Mr Parnell debated the point, with Mr Hunter pointing out that tradesmen work 12-14 hours per day in London. Mr Parnell countered with the point that they were in Wellington, not London. Given the shortage of skilled tradespeople at the time, Mr Hunter had no choice but to agree to his terms. Before the year was out, Mr Parnell and other workers held a meeting at which an eight hour working day was agreed. Some employers resisted, but Mr Parnell had the numbers.

So as you enjoy this long weekend, the last for many New Zealanders this year before Christmas, the weekend before end of year university exams start for many, take a moment to give thanks to Sam Parnell for something that hundreds of millions of less fortunate workers in other countries can only dream of. He gave you and me the eight hour working day in New Zealand.


Weak labour inspectorate hindering protection of workers rights

The resurfacing of an ongoing court case involving the fishing crews from trawlers owned by Sajo Oyang has once again thrown the spot light on the under funded and under resourced labour inspectorate. This inspectorate which is charged with ensuring compliance with New Zealand labour laws has struggled to make an impact on New Zealand’s worsening record of labour law violations with a growth in complexity, and severity of cases being brought before it.

The individual instances are too many to list. The range of victims varies considerably from crews of foreign trawlers owned by multi-nationals working in New Zealand waters to to the staff of small businesses in shopping mall food courts and restaurants. So does the complexity from long drawn out cases that only came to national attention after the media cast a spotlight on them, to staff taking their employers to court after finding out about their rights and how poorly they had been treated. Other smaller cases have involved one on one instances of particular employees being abused, under paid and threatened by their boss.

But it is not only the range of victims and the complexity of the cases that is concerning, but also the severity of some of the offences. The fishing crews involved in the case against Sajo Oyang from trawlers operating out of New Zealand ports alleged physical, sexual and mental abuse. They said the ships were derelict, and unsafe operating practices were rife. Evidence was found that fish were being dumped and that the records of catches were being deliberately fiddled with. This case, which came to the surface first in 2010 after an Oyang trawler sank at sea in bad weather with the loss of six crew. It then gained national attention in 2011 after the crew of a trawler berthed in Lyttelton tried to get off the ship is before the courts and is ongoing.

Then there are others, not working for large companies. One example are a group of people from a shopping mall food court in Auckland, who were not paid according to New Zealand law and were found to be owed N.Z.$160,000+. The fine comes two years after the labour inspectorate was first approached to investigate alleged non-compliance and found that not only was it happening, but it had been happening for sometime.

I believe that non-New Zealanders wanting to establish a business here must complete a certification course in which they learn about New Zealand labour laws. The certification should only be granted by the Ministry of Business Innovation and Employment, and be liable for removal should the certificate holder demonstrate non-compliance. It should be enforced by the labour inspectorate. Revocation of the certificate removes the right of the holder to operate a business in New Zealand.

There are people who would call this nanny statism or big Government, but the reality is laws are often made because of a small percentage of people who either cannot or will not demonstrate reasonable or lawful behaviour. If it could be proved that every employee would treated with common human decency without the need for a labour inspectorate, I believe this would have happened by now.

The bullying epidemic in New Zealand

We hear about bullies in schools picking on vulnerable or isolated children. It might simple things as snubbing them in them games, or more overt acts such pushing and shoving, breaking property and ganging up on them. The acts are damaging to the child and the student starts to withdraw into their own world.

Sadly the same can be said for the workplace as well, particularly after a new survey came out showing the extent of the problem. There is no doubt about it: New Zealand has a culture of bullying in the work place that . It might be vulnerable staff, possibly new to their job and still finding their way or coming across as different or possibly simply someone who looked like they could be an easy target.

New Zealand has one of the highest rates of bullying in the workplace in the world. Some say it is partially because of a male “suck it up” attitude, but in instances where females have been the perpetrator it might possibly be because of perceptions that female staff would not indulge in that kind of behaviour.  Just as there is a tendency to pay males more than females, there might also be a tendency to punish female bullies less than male staff. Misconceptions might also exist as to how the victim is supposed to react – do they complain at the risk of being told to harden up and be a man; do they play the “man” role and just suck it up?

It does not help that a state of apathy, or perhaps more accurately societal lethargy, about the issue exists. Even at Government level it has been found that apathy exists – is it really a problem; do people not care; it is a problem, but not ours – could all be attitudes prevalent in Ministries that might have a tangible impact on the issue.

As noted in the report, there are things we can do:

  1. The law needs redefining for a start – it is considered vague
  2. A proactive culture driven by people who want to make meaningful change on the issue needs to be instituted
  3. Reporting procedures need to be improved and staff educated on how to make a complaint
  4. Complainants need to have confidence that when a complaint is reported it is acted on and not filed away

But do nothing should not be an option.

Employment laws have no effect

Since National came to power in 2008, there have been a raft of changes to employment law. The Government of Prime Minister John Key says that they are necessary to improve employment opportunities and also give employers better certainty about hiring and firing. But mid way through the third and possible final term of this National-led Government, is it possible for Mr Key to say that they actually work?

When the 90 day trial law came into effect, the Government said it was necessary to ensure that employers could remove employees that were not performing to the desired standard. It claimed that because hiring and firing had been made easier there would be a surge in jobs available. Since then that has not proven to be so – in fact very little change in terms of how people are hired and fired seems to have occurred. The same barriers that make it difficult for people who have disabilities and/or are Maori and/or are on the benefit and/or are young still exist. Only when those barriers are addressed will the Government be able to say employment just got easier.

Another measure introduced by the Government that is not having any positive impact is the youth rates measure, which Simon Bridges introduced. The idea with the youth wage was officially to get young people used to the idea of starting on a lower wage and working into higher ones when they became an adult. Like the legislation that was passed to enable the 90 days trial, little seems to have been achieved by denying younger people the same wage as the rest of the country. Currently there are three classifications of wage in New Zealand:

  1. The Starting Out Wage, which has three sub categories – 16-17 year olds who have not completed 6 months work with their employer; 18-19 year olds who have been paid a social security benefit for 6 months or more and have not completed 6 months or more of work with an employer since they started on the benefit; 16-19 years who are required by their employers to undertake at least 40 credits a year in order to become qualified
  2. The Training Wage which is for people doing industry training involving at least 60 credits a year
  3. The Adult Minimum Wage

Given the problems with housing and living expenses such as food and other necessities, this may seem like a harsh measure. To me it signals that youth are somehow less valuable to society than an adult. The only standard wage that should exist is the minimum wage, which should be applicable to all. It will take a change of Government or some highly improbable radical revision of philosophical standpoint by National for the above to change. But even if Labour do win the election, how keen are they to change it?