Last week Public Service Minister Nicola Willis announced an intention to stop bonus payments being made to public sector employees who are fluent in te reo.  She said that the government would “ask for advice on how we could stop these bonuses being negotiated into future collective agreements”. 

It seems having received such advice, the Minister back tracked, acknowledging that “Whilst we would not have initiated the bonuses ourselves, and while we do not support them, we are left with little choice but to implement them given they are contained in binding collective agreements”.

So it appears that the current position is that existing contractual obligations will be honoured, but public service agencies will be directed not to agree to any further such arrangements in collective or individual employment agreements.

Leaving aside the wisdom of further inflaming groups who are already feeling marginalised by recent government policy announcements, this issue is about more than just complying with contractual commitments. It also raises complex legal issues relating to the obligations of public service agencies under the Public Service Act to “operate an employment policy containing provisions for the recognition of the aims and aspirations of Māori, the employment requirements of Māori and the need for greater involvement of Māori in the public service”.

This section was considered by the Employment Court in the recent case of GF v Customs, where the Court held that it was “seriously arguable” that these provisions placed heightened “good employer” obligations on public service employers.  The Chief Judge Christina Inglis also found that where an employer incorporates tikanga principles into its employment policies and agreements, it will be held to this and required to act consistently with these values.  Tokenism and paying “lip service” will not be enough.

Unless the government intends to remove these obligations from the Public Service Act there is a real risk that the Courts will find public sector employers who seek to negotiate out of continuing obligations to pay allowances to te reo speakers to be in breach. 

In this regard, whilst Regulation Minister David Seymour has bluntly said that the policy of paying bonuses to encourage the use of and proficiency in te reo “does not contribute to the quality of public service that people receive”, it is not difficult to argue otherwise.  In particular, in front facing agencies which are required to deliver services to the public, fluency in te reo and the ability to relate in this way to a significant portion of the population is surely a value add and a skill which is relevant to the job.

Further, the recognition of the aims and aspirations of Māori likely requires recognition of, and promotion of, the use of te reo.  This is a statutory requirement.

There is also an obligation on employers to consult about changes to policies which may adversely affect any groups of employees.  Public sector employers will therefore need to be able to articulate the reasons for the removal of allowances in this context – that is likely to lead to some interesting discussions.

The other potential ground for legal challenge is discrimination.  Employees are paid bonuses and allowances for a range of skills and experiences that they bring to the table.  Excluding the opportunity for a particular group of employees to seek to negotiate allowances into their employment arrangements is arguably discriminatory.  In this regard the Human Rights Act prohibits an employer from offering less favourable terms of employment by reason of the prohibited grounds specified in the Act, which include race.

There is a flip side to this and that is the argument that paying bonuses to employees who speak or are learning te reo discriminates against other groups.  However, the Human Rights Act also allows an employer to implement measures for the purpose of assisting or advancing groups against whom discrimination is unlawful if it may reasonably be supposed that the group need this assistance in order to achieve an equal place in society.  This effectively allows for “positive discrimination” if this is necessary to support a marginalised group to achieve equality.

None of this is as straight forward as the Minister appears to think.  The Public Service Association, Te Pukenga Here Tikanga Mahi, has already made plain their intention to challenge the implementation of this policy, with Marcia Puru, Acting Te Kaihautu Māori saying publicly “We’ll be resisting that heavily and strongly”.

This will almost certainly be an issue that ends up in the Courts at some point.

This article was originally published in The Post