Two important Māori principles – Kaitiakitanga and Pono (we’ll get to their meaning and relevance shortly) – underpinned the PSA’s landmark win in the Employment Relations Authority against the Ministry of Education.

In its determination delivered on July 18, the Authority accepted the PSA’s case that the Ministry had not complied with the Collective Agreement in how it implemented its change proposals for cutting 755 roles.

The proposed cuts are in response to the Government’s rephasing of the NCEA programme, changes to the School Transport and Sector Service Desk processes, and meeting the Government’s requirement for cost savings.

Kaitiakitanga and Pono

The Authority’s determination accepted the PSA’s interpretation of the Collective Agreement’s Section 11 which dealt with change management. The section requires the Ministry and the PSA to engage collaboratively to reach agreement on any change.

It also requires the change process to be underpinned by the principles of Kaitiakitanga and Pono.

These principles were added to Section 11 when the PSA bargaining team rewrote the collective in 2021, PSA Rūnanga National delegate Aleeta Hau said.

Previous collectives had referenced the PSA’s Ngā Kaupapa principles in Section 2 of the collective.

“As a collective team we talked about having Ngā Kaupapa in each section to make the values more real. Each of us were allocated a section and I had the responsibility for Section 11,” Aleeta said.

Aleeta said she chose Kaitiakitanga (from Ngā Kaupapa), which is about protection, and deliberately narrowed the definition to “protection of members to secure fair working conditions and a secure future” within the context of change management.

The second principle, Pono, was taken from the behaviours detailed in the Ministry’s He Huarahi Pai (People Strategy and Behaviours). Aleeta reflected the definition of Pono in He Huarahi Pai as “doing the right thing, not the easy thing,” when implementing change management processes.

PSA Co-Convenor Joanna Houston said, “We could see that the Ministry had only a literal and overly simplistic understanding of Kaitiakitanga and Pono. Our first opportunity to raise their significance was during mediation.”

Joanna said the Ministry should have taken the time to understand the principles it had signed up for, which would have ensured that workers were treated with dignity and decency.

“If Kaitiakitanga and Pono had been applied from the start, there would have been a different outcome from the Ministry’s change process. We wouldn’t have seen the avalanche of complaints from hundreds of workers who were hurt and humiliated by the Ministry’s actions,” Joanna says.

The Hearing

After mediation was unsuccessful the matter was heard before Authority Member Natasha Szeto in late June and early July.

Employment lawyer Peter Cranney and PSA Legal Officer Angus Wilson represented the PSA. PSA Assistant Secretary Fleur Fitzsimons oversaw the case and gave evidence along with Aleeta and Joanna. Evidence was also heard from PSA National Sector Lead Cheryl Reynolds, National Delegate Ian Rich, Delegate Hayley Whitaker (featured on the cover), and PSA members Carl Klitscher, Gary Northcott, and Tania Roxborogh. Organiser Ashok Jacob and Co-Convenor Myron Elkington supported the PSA team.

Prior to the hearing, the PSA group led by Joanna and Myron marched proudly through the marbled foyer of the Authority’s office in Wellington. The video of their entrance was seen by thousands of people on the PSA’s social media channels.

The Authority’s Determination

In its determination, the Authority accepted the PSA’s interpretation that the Ministry had not complied with the collective agreement.

“There was no attempt to engage the PSA as an active participant in the change,” Fleur said.

“The Authority found that the Ministry used the PSA to receive and disseminate information but that the collective employment agreement provided for a far more engaged process with the aim of making recommendations to management, who will endeavour to take the views into account as far as possible before making a final decision.

“The Authority also agreed with the PSA position that the Ministry was required to adopt a case-by-case approach to the outcomes for individuals.  This means considering matters such as retraining, leave without pay, early retirement, severance and assisting people into other work for each individual,” Fleur said.

“This consideration also includes a requirement that severance for redundancy can only be implemented once the Ministry and the PSA have agreed it is an available option and once the individual has agreed to take the option.

“The case-by-case approach and the approach to agreeing options including severance means that the Ministry should reconsider its approach to voluntary redundancy and reducing its reliance on contractors,” Fleur said.

In terms of the importance of Kaitiakitanga and Pono, the Authority found that these principles are “significant”, particularly Pono, with its emphasis on doing the right thing for affected staff rather than what was convenient for the change process.

“Pono was particularly relevant to the requirements that Ministry work with every individual and agree an approach,” Fleur said.

The Aftermath

On hearing the decision, Aleeta, who has left the Ministry for a union advocacy role, said she felt, “happy and proud that the Authority had understood the impact of the kaupapa”.

Joanna said the decision has had a “galvanizing” effect on PSA members, who were now more engaged and involved in union activities.

After the determination, the PSA settled two similar cases with Oranga Tamariki and the New Zealand Qualifications Authority.

“The decision is a victory for dignity and fair treatment at work,” Fleur said.

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