Crown law has published its advice on the consistency of Sue Bradford's Minimum Wage (Abolition of Age Discrimination) Amendment Bill with the New Zealand Bill of Rights Act, and told us what we knew all along: that youth rates are discriminatory and inconsistent with the BORA. Here's what they had to say:
6. The explanatory note states that the Bill seeks to remove the ability of the Governor-General to discriminate on the ground of age when making Minimum Wage Orders under s 4(1) of the principal Act. However, it is our view that the principal Act does not authorise the Governor-General to make orders that discriminate in a way that is prohibited by the Bill of Rights Act or the Human Rights Act.7. Section 6 of the Bill of Rights Act requires that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights Act, that meaning must be preferred to any other meaning. Therefore, s 4(1) of the principal Act would be interpreted as only authorising the making of orders that are consistent with the Bill of Rights Act
8. It follows that any orders made under the principal Act that are inconsistent with the Bill of Rights Act may be deemed ultra vires. The New Zealand Court of Appeal in Drew v Attorney-General [2002] 1 NZLR 58 held that regulations that were inconsistent with the Bill of Rights Act were ultra vires and invalid because the empowering statute did not explicitly authorise the making of regulations that are inconsistent with the Bill of Rights Act.
(Emphasis added)
Crown Law concludes that because of this, the bill is in a sense unnecessary - but IMHO it is still worth passing to provide legal clarity. Meanwhile, both the EPMU and Unite have announced their intention to sue for their members' underpaid wages. I don't really expect such suits to be pressed home unless the employers in question are total bastards, but they will be an excellent negotiating tool to have youth rates ended in practice even if they are not ended in law.
"the bill is in a sense unnecessary"
ReplyDeleteJust like the major parts of Larry Baldock's (later Gordon Copeland's) Marriage (Gender Clarification) Bill.
Passing a law that will do nothing more than make a statement - a law that will not change the law - is a waste of Parliamentary time and taxpayer money.
I hope now, given the rationale used by Labour MPs (even its especially progressive ones) in voting down the Marriage (Gender Clarification) Bill, they will vote this down too, so that Parliamentary time can be spent on things that will actually change something.
Graeme: you're being just a tad disingenuous there. Copeland's bill would have restated what everyone understood was the status quo; here, while there is a strong legal opinion that youth rates are discriminatory, its not yet recognised by either the government or the courts, and enforcing it will take some time and legal effort. And I'm quite happy for the government to spend that time and effort so that young workers - who tend to lack resources to hire lawyers and fight court battles - don't have to.
ReplyDeleteI'd also prefer it if they stripped out the discriminatory language, just to make it harder for a future government to change its mind.
Sue Bradford's comments in the paper yesterday (IIRC) suggested that they were going to go after McDonalds (who haven't removed youth rates) and not after Restaurant Brands (who have).
ReplyDeleteSeeing as they are going to sue for *historical* wages, this seems to be rank hypocrisy - they are discriminating against McDonalds.
Not that I think the case has any merits at all - sue to government if you're going to sue anyone (I really hope that doesn't give them ideas...)
Spam: the correct target for legal action is the government, as its legally dubious whether companies are liable for following (or acting consistently with) an ultra vires order. But the suits will still cost money to defend, and are a great way of applying pressure to end youth rates ASAP.
ReplyDeleteI thought Restaurant Brands owned the NZ McDonalds franchise?
ReplyDeleteRich: No - they own Starbucks, KFC, Pizza Hut and Burger King (I think).
ReplyDeleteMcDonalds have nothing to worry about - my take on all this is here:
ReplyDeletehttp://www.sirhumphreys.com/node/5139