Last week was Māori Language Week, which might be an apt time to consider the legal status of Te Ao Māori and Tikanga in the employment relationship.
Tikanga is a Māori concept incorporating practices and values from mātauranga Māori, Māori knowledge. Tikanga is translated into the English language with a wide range of meanings: culture, custom, ethic, etiquette, fashion, formality, lore, manner, meaning, mechanism, method, protocol, style, customary law.
There is currently no legal precedent in the employment jurisdiction about whether parties in an employment relationship are bound by relevant Tikanga principles. It is my view that principles of Tikanga are relevant to the employment relationship, and we are expecting to see some precedent when the Employment Court releases its judgment of GF v Comptroller of the New Zealand Customs Service (interlocutory judgment here), which alleges that New Zealand Customs failed to act in accordance with its own whanonga pono (values) and failed to act in accordance with other tikanga principles relevant to the employment relationship between the parties.
It is well known that Māori law (including Tikanga) is part of the common law of New Zealand, and the Supreme Court has been previously interested in exploring the relevance of tikanga to the applicable common law, even where there was no Māori element within the facts of the case (see Law Society article here).
In terms of the potential applicability in the employment relationship, it may well be that Tikanga is an implied or express obligation in every employment relationship, sitting neatly within the wide obligations of good faith required by the Employment Relations Act 2000. The obligation of good faith is wider in scope than the implied mutual obligations of trust and confidence, and requires parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative.
Alternatively, it could be found that Tikanga is implied on only certain employment relationships; to this end it might be worthwhile to consider the recent Supreme Court matter of Deng v Zheng, which held that cultural issues may be relevant to New Zealand commercial arrangements, including the interpretation and application of law. In Deng v Zheng, this included two Chinese parties, however, these same principles could (surely) apply in the employment jurisdiction where an employment agreement has been formed with an express or implied recognition of Tikanga.
In my view, the principles of Tikanga align with the expectations of good faith in an employment relationship; incorporating Tikanga does not impose additional obligations, but further strengthens our understanding of good faith in an employment relationship. The degree to which Tikanga applies would depend on the circumstances, but overall, I think the recognition of Tikanga will assist in promoting employment relationships (generally).
It certainly is an interesting and exciting area of law.
Tena koe Ashley. I am Maori, grew up in Maori speaking communities in the Urewera and small forestry towns in the Bay of Plenty. I schooled at a Maori college and I am old enough to have witnessed the change from that of my tupuna to now. Just like I know the difference between goodness and something thats starting to rot.
Employment Law covers most every aspect of good faith, and respectful interaction between an employer and their employees. Adding another level of “tikanga” will not encourage better relationships in my view, except in those institutions where hui are held every second day.
But let’s take the view you are promoting one step further. Let’s introduce Tikanga. From which iwi? Whose hapu’s tikanga shall we apply? Shall those employers in each region have different aspects incorporated into their contracts? Once decided is co-governance of businesses and the like, the next step?
See where I was brought up, our tikanga was to speak what lay in our hearts. Not what pleased the hearer. In addition that we are all entitled to our view. You included.
kia ora john m, “those institutions where hui are held everyday” as you correctly identify being the only bank accounts which benefit from the p.c. innovations of govt. imo..
after attending a hui for local ‘arts’ management we perceived that the intermediary managers and promoters of ‘art’ were only interested in their own functions and remunerations and viewed ‘artists’ and creatives as their own cannon fodder…sigh
For the most part of my life, I have lived in Maori-speaking settlements in the Urewera and in little forestry towns in the Bay of Plenty. I went to a Maori boarding school and am old enough to have seen the culture shift from that of my tupuna to the present day. In the same way that I can tell the difference between something that is good and something that is deteriorating.