Rail union plans legal test case over Chinese engineers
A union is vowing to take a test case to determine whether New Zealand employment law applies to Chinese rail engineers, with the government willing to leave the matter hanging.
On Tuesday Workplace Relations Minister Michael Woodhouse said uncertainty over the legal status of employees removing asbestos from Kiwirail's trains could only be determined by the courts.
But Woodhouse indicated he was comfortable with legal advice suggesting local law probably didn't apply.
On April 18 the Ministry of Business, Innovation and Employment released its investigation into allegations the Chinese workers, stationed at Kiwirail's yards in Lower Hutt and elsewhere, were paid below the minimum wage, living in cramped conditions.
MBIE found that the allegations were not supported, however it admitted its efforts to establish how much the workers were paid were blocked when both the employees and employer, CNR Dalian Locomotive, refused to release wage records.
However MBIE said this did not affect its investigation as "it is more than likely New Zealand employment law does not apply to these workers as they are based in China and here only temporarily for work".
On Wednesday the Rail and Maritime Transport Union (RMTU) said the uncertainty could not be allowed to stand.
"Allegations of exploitation demand more than a shrug of the shoulders and tentative legal advice," general secretary Wayne Butson said.
"It is a complete and utter disgrace that our Minister of Workplace Relations is comfortable to have a question hanging as to whether New Zealand law will apply to a person working in New Zealand.
"If the answer is 'not it does not' then we have to find another country to live in because this place will be full of immigrant slave labour.
The RMTU could seek a judicial review of the status of the Chinese engineers, Butson said, or challenge Kiwirail over a clause in its collective agreement in which the state owned company pledged not to contract out work at a lower rate than it paid its own employees to do similar work.
Butson said the situation threw into question not only New Zealand's minimum wage, but also the Employment Relations Act and health and safety standards.
"There is a myriad of legislative instruments that are in question here."
Woodhouse said on Tuesday that there were a number of foreign employees, such as international airline pilots, who were already not subject to New Zealand employment law.
"We don't expect them to be employed by New Zealand organisations or subject for the duration to New Zealand employment law," he said.
"The question is for how long should that apply; that's only something that one can test in the courts."
Woodhouse said he was "very happy with the circumstances under which they were asked to do the work in New Zealand" and that most of the allegations made about the workers had been disproved.
The allegations were made by Labour's Trevor Mallard, the MP for Hutt South, who has dismissed MBIE's investigation and said the matter may have to be determined by the courts.
"The idea that New Zealand's law on minimum wages doesn't apply in New Zealand just because people signed a contract offshore would totally undermine our minimum wage legislation," Mallard said. If that were the case it could undermine health and safety standards too, he said.
"It's certainly our view that that advice [from MBIE] is wrong and it will almost certainly end up needing to be a test case that proves it if the Government's not prepared to enforce the law."