Mānawatia a Matariki — Happy Māori New Year!.

Matariki: Time for reflection on workplace practice and law within Aotearoa

June 22nd, 2022 - Barbara Buckett

Buckettlaw wishes for a thoughtful Matariki; one in which we can reflect on how we can access past indigenous laws as a rich source of development and enhancement to our current employment law.

To think how the current employment law can intersect with tikanga (the first law in Aotearoa prior) to reflect the communities and society more appropriately we live in.

The Supreme Court in the Peter Ellis case has laid the platform legitimising tikanga as a relevant and legitimate source of law within current common law.

Apart from one reference to the Treaty of Waitangi the current Employment Relations Act makes no reference to the treaty and employment relations, which is a sad indictment on the commitment to the Treaty.  

Buckettlaw sees the Ellis case as an opening for a discussion as to the relevance and application of tikanga in employment law processes and legislation.

The current system doesn’t appropriately incorporate legitimize or engage with tikanga. 

The use of tikanga is inconsistent and at the behest of the provider of the service or controller of the process.

Whilst there has been a surge in the number of Māori represented within the infrastructure of the resolution services; such is slight and not easily accessed. Moreover, it places an unfair burden on those who are Māori within the system as they are few and far between and in high demand.

Tikanga aligns with the same values, principles, and objectives as our current law (fairness and reasonableness). It can easily be interwoven into the current statutory framework that underpins our employment law, so why not do it. 

Concepts such as Hara (the doing wrong), Whanaungatanga (the proper maintenance of relationships) and Ea (a state of resolution, restoration of relationships and closure) are the same or like the current legal dispute resolution outcomes.

Where the current system fails is it doesn’t accommodate the collective and whanau interests of Māori where often the hara (wrong) to be addressed goes beyond an individual. The current system is non-binary, individual-based with a paramount commercial economic focus.

The current system has little if no ability to accommodate the traditional Māori governance structure based on tikanga steered by whanau and iwi.    

The Ellis case demonstrated how employment law can intersect with tikanga. It is a significant development which ought not be buried in the past.

We hope that our article may provoke a discussion for change that will see our employment laws and institutions wholly embrace tikanga and its principles as a legitimate enhancement to the current adversarial system.  

We at BuckettLaw would welcome any thoughts as to how we can assist in bringing about change.

Happy thoughtful Matariki. May the stars signal a change in the right direction so we can celebrate Aotearoa as it is meant to be.

Note: BuckettLaw takes no responsibility for the consequences of any actions taken on the basis of our articles. Any views expressed or comments made in an article are the writers option only. The content in our articles does not constitute legal advice. If you need legal or expert advice you should obtain specific advice about your case or matter from a professional. For legal advice based on your individual situation please contact us to speak with one of our expert lawyers.

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Barbara Buckett

Barbara Buckett is a highly experienced senior employment lawyer with over 35 years of practice in New Zealand. She provides expert advice on all areas of employment law and has a proven track record of delivering excellent results for clients. Barbara has extensive experience in resolving workplace issues and is an experienced litigator. In her free time, she enjoys reading, traveling, working out, and fine wine and dining with friends.

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