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Three rōia Māori in the employment space consider mana in the workplace. Alice Anderson summarises the case law that recognises the validity of tikanga Māori. Shelley Kopu acknowledges that the integration of te reo Māori and tikanga Māori in our courts and practices as a commendable start towards cultural competency. And Ari Bennett looks at the future value of skilled kaimahi.
❝ Mehemea ka moemoeā ahau ko ahau anake, mehemea ka moemoeā a tātou, ka taea tātou. ❞
If I dream, I dream alone. If we dream as a collective, we can achieve our dream.
This whakatauki from Te Puea Herangi, an ancestral leader from Tainui, reflects the coming together of three wāhine Māori who are among the few rōia Māori practising employment law. Despite never actually working together and living in different areas of the motu, they do not see each other as competition in te ture. Rather, they lift each other up and encourage each other to continue working toward the kaupapa of achieving better outcomes and creating better systems and processes for our people within te ture, particularly in the employment space. This reflects the kaupapa of Te Hunga Rōia Māori o Aotearoa, the Māori Law Society, more generally and is an approach these wāhine encourage others in the profession to adopt.
The Employment Relations Act 2000 confirms that an employment relationship is underpinned by a mutual duty of good faith. This requires the parties, among other things, to be active and communicative and not to mislead or deceive the other.
However, Chief Judge Inglis of the Employment Court has highlighted the ambiguity of the current state of the duty of good faith. In her 2019 kōrero ‘Defining good faith (… and Mona Lisa’s smile)’, she said that Parliament’s vision for the concept of good faith has “yet to be fully realised”.
The Chief Judge went further to say that employment law “must keep pace with society’s contemporary needs, standards and values as they evolve”. She noted that “…there is now a growing recognition that tikanga Māori (and other aspects of the Māori world view) have a legitimate place in the law of New Zealand”. As such, consideration of and engagement with cultural values arguably form part of the good faith duty.
When a dispute arises in the workplace, section 103A(2) of the Act confirms the test of justification being, “whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred”.
An assessment of the case law confirms that there will be times when consideration of tikanga and te ao Māori will be relevant to the assessment of the fairness and reasonableness of an employer’s actions.
An assessment of the case law confirms that there will be times when consideration of tikanga and te ao Māori will be relevant to the assessment of the fairness and reasonableness of an employer’s actions.
The Court recognised the validity of tikanga Māori in the workplace as early as 1996 when it considered whether a Kōhanga Reo had unjustifiably dismissed two employees in Te Whānau a Takiwira Te Kōhanga Reo v Tito 2 ERNZ 656.
The Kōhanga operated a policy requiring decisions to be made by consensus of the whānau during wānanga. The Court said wānanga was no more than a process, like any other process an employer may choose when considering termination of employment. It went further to say that there was nothing to prevent it from giving recognition to concepts of tikanga and te ao Māori that may underpin the employer’s kaupapa and decision-making processes.
The Court was however, still required to assess whether that process was fair and reasonable. On this occasion it found the Kōhanga had not acted consistently with its own policy, rendering the dismissal of its employees unjustified. The point remains, however, that tikanga-based processes are entirely legitimate in the employment context.
In 2002, in Good Health Wanganui v Burberry [2002] EmpC 668 the Court considered whether Ms Burberry, a wahine Māori working in Māori mental health services, had been unjustifiably dismissed. Ms Burberry had allegedly taken leave without approval, after her manager declined her request for leave to attend a kapa haka festival that she had attended (with approval from Good Health Wanganui) for the previous 17 years.
The Court found Ms Burberry’s dismissal was both substantively and procedurally unjustified, but went further to say:
“The fact an employee was Māori and working in a Māori setting should have been sufficient to have alerted [the employer] to a need for an appropriate procedure. The onus should not have been on the employee to have asserted her mana Māori or to plead for her cultural identity to be recognised”.
Judge Shaw’s findings in Burberry indicate that the responsibility sits with an employer to engage with te ao Māori authentically in the workplace, and that a failure to adopt culturally appropriate processes could in and of itself be enough to render a dismissal unjustified.
Despite all of this, and 20 years on from Burberry, workplaces, practitioners, and the Courts are still grappling with the role of tikanga Māori and values of te ao Māori in the workplace.
Alice Anderson, Kāi Tahu, Kāti Māmoe, Waitaha, is an Associate at Dundas Street Employment Law in Te Whanganui a Tara.
As rōia Māori in the employment space, we acknowledge that our industry has taken considerable steps towards cultural competency through the integration of te reo Māori and tikanga Māori in our Courts and practices. Cultural competence is a commendable start, however our wero to our friends in the law is the exploration of cultural safety, primarily in respect of their Māori kaimahi (employees).
Professor David Tipene-Leach, states that cultural competence is about “having skills and knowledge to work with people from different cultural backgrounds”. Cultural competence encompasses cultural diversity, the acknowledgment and understanding of Te Ao Māori in order to understand who we are as Māori to create effective and respectful engagement.
In contrast, cultural safety focusses on whether the firm’s values, customs and practices create a culturally safe environment for Māori kaimahi. In addition, it is consistent with obligations of kaitiakitanga which is fundamental in a functioning employment relationship.
So why take steps in this direction? When we continue to struggle to attract and retain roia Māori in the commercial world, a natural enquiry should be whether the environment is one where our roia Māori are culturally safe. With Māori businesses requiring those that they engage with to be competent in te ao Māori, an ability to evidence cultural safety in alignment with competency, speaks volumes to a genuine partnership. The ongoing issue of access to justice for Māori will be addressed to some degree by an increase in roia Māori. Finally, if firms are sincerely seeking to create an environment of cultural competency and cultural safety for its kiritaki (clients), then it cannot possibly do so if it fosters an environment that is not first culturally safe for its kaimahi.
To create a culturally safe environment, rōia must be prepared to critique the power structures that have been in place for some time, challenging their own cultural systems rather than prioritising becoming ‘competent’ in the cultures of others. It will require the firm to:
Importantly, there is not a “one size fits all approach”. Many Māori kaimahi bring with them their own journey of te ao Māori. For example, calling Māori to lead a mihi whakatau or powhiri, when they are at the commencement of reclaiming their te reo Māori may in fact create significant whakamā (shame) for them. Additionally, the commitment to cultural safety is, as with cultural competence, a journey for the firm, and therefore you should not rely on your Māori kaimahi to carry the load of driving cultural initiatives or taking on cultural responsibility for the firm.
Given the requirement of self-assessment and awareness, the journey to the creation of a culturally safe environment may be a vulnerable one. It will likely require the practitioner to learn and embrace the effects of colonialism, the generational trauma through injustice and displacement and the appreciation of the struggle in reclaiming lost taonga such as the ability to exercise tikanga and speak te reo Māori. However, the outcome is an environment that creates true safety for all rōia, not only Māori, and moves us towards rewarding and enduring employment relationships.
Shelley Kopu, Te Atiawa, is a Principal at Shelley Kopu Law in Tāmaki Makaurau.
What could this mean for employers who wish to be successful in the 21st century? Embracing and applying tikanga Māori could be key. Values that focus on the importance of relationships, peoples’ dignity and obligation to care for one’s own, such as:
So why should employer’s care about values and how they treat kaimahi? Because kaimahi are about to become extremely valuable. Baby boomers are retiring, skilled kaimahi will be in increasingly short supply and Covid-19 is exacerbating the issue. By 2030, experts predict that labour planning will become more important than financial planning.
We are currently in the midst of a massive shift in the worldwide labour force. The baby boomers started retiring in 2012, this begins en-masse from 2020. Around 20% of the Aotearoa workforce is forecast to disappear.
According to the Ministry of Social Development, it is projected that 22% of Aotearoa’s population will be 65-plus in 2036, and 25% will be 65-plus in 2056. By the end of this decade, Professor Paul Spoonley says that Aotearoa will be an “old dominant population” with the over 65’s being the biggest part of our population, for the first time in our history.
It is also expected that international competition for skilled kaimahi and the attraction of overseas work for Kiwis will increase. International Human Resources Expert, Senior Partner and Managing Director at the Boston Consulting Group, Rainer Strack, predicts that “By 2030, we will face a global workforce crisis in most of our largest economies”.
The automation of jobs (e.g. robots and big data) is unlikely to solve this problem. Technology will replace a lot of jobs, but we will also see a lot of new jobs and skills on the horizon, meaning technology will worsen our overall skill mismatch. Ultimately, there will always be a need for people in the workforce.
In Aotearoa, there is also the factor that the Māori population remains comparatively youthful to non-Māori, and by 2026 it is projected that Māori will account for 15 % of the total population, and 14% of the working age population. For the younger working aged population (15–29 years), Māori are projected to comprise nearly 20%.
So, many of the kaimahi that employers will need in the future will be Māori.
In 2014, Rainer Strack’s group carried out a global survey among more than 200,000 job seekers from 189 countries. It explored participants preferences and what they were looking for at work.
The results revealed that out of a list of 26 topics, salary was only number eight in terms of importance to the participants. The top four topics are all centred around workplace culture, specifically:
If workplace culture is the top priority, then the global workforce crisis becomes very personal. Workplaces that value and appreciate their employees are more likely to attract and retain skilled kaimahi. Workplaces are likely going to need to make changes to achieve this, and values within tikanga Māori are an obvious place to start, and could attract the large and significant proportion of the working age population who will be Māori.
In 1999, when talking about the future of Māori economic development, Professor Mason Durie said, “the greatest asset Māori have is the approximately 500,000 Māori people”. Today that figure is around 850,000, and growing.
If workplaces in Aotearoa wish to prioritise workplace culture to retain and attract kaimahi, tikanga-based values could be a powerful tool to achieve that. It could also ensure employers are effectively engaging with their Māori employees and recognising mana Māori in the workplace.
The law has been telling us for some time that tikanga Māori and kaupapa Māori values have a valid place in the workplace and in employment law. Society is telling us that Māori are still disadvantaged in many aspects of employment and given the future prediction that a significant portion of Aotearoa’s workforce will be Māori, workplaces need to improve their culture and engagement with Māori in the workplace. As rōia in this space, we all have a responsibility to be leading from the front to understand what cultural competence and cultural safety in the workplace truly looks like if we are ever going to effect change. Our dream for the future is for our fellow practitioners to join us and start giving effect to what Judge Shaw said in Burberry and recognising mana Māori for our people in their mahi.
Ani Bennett, Ngāti Ranginui and Te Whānau-ā-Apanui, is a Director and Barrister at Bennett Employment Law Ltd in Tauranga.