Associate Education Minister David Seymour Photo: RNZ / REECE BAKER
A select committee report has revealed previously confidential legal advice that charter school rules will likely breach international labour and free trade agreements.
The advice was sent to MPs and sector groups in a Regulatory Impact Statement (RIS), but they were later told it was a legally privileged draft. Another version was then released with some of the advice redacted.
RNZ did not publish it at the time due to legal sensitivity, but the Public Service Association referred to the advice during its submission to the Education and Workforce Select Committee and RNZ published those comments.
Labour, in its minority report on the Education and Training Amendment Bill published on Thursday, revealed the advice - and the attempts to prevent MPs and the public from seeing it.
The advice said preventing charter school staff from joining collective agreements for multiple employers - known as Multi-Employer Collective Agreements (MECAs) - would probably breach International Labour Organisation obligations.
"Additionally, there is a strong misalignment with the ILO obligations as it creates a significant restriction on parties' ability to bargain freely. If a complaint were to be brought to the ILO, it is likely that the ILO would confirm the misalignment. This could require officials to participate in hearings and follow up on any recommendations and could have reputational impacts," the advice said.
"New Zealand has obligations under free trade agreements (FTAs), including with the European Union (EU) and United Kingdom, to 'respect, promote and realise' the fundamental rights at work contained in the ILO fundamental conventions. In light of the above assessment, it follows that this option is also likely to breach some of our binding FTA obligations.
"Non-compliance also entails risks if unions or individuals challenge the implementation via domestic litigation. There are possible legal challenges based on section 17 of the BORA, which refers to freedom of association. ILO obligations, as interpreted by the ILO supervisory mechanisms, may be used as an interpretation aid by the Court. Any limitation on that right is required to be demonstrably justified under section 5 of the BORA, which says that the rights and freedoms contained of the BORA may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
Labour's Workplace Relations and Safety spokesperson Camilla Belich at a select committee Photo: VNP / Phil Smith
Labour's Workplace Relations and Safety spokesperson Camilla Belich told RNZ such MECAs had existed in New Zealand for at least 20 years, and were typically available to other New Zealand employees.
"They have to be kind of consented to by the parties to that agreement, and they only cover the parties who sign up to them," she said. "This is a right that applies to all employees in New Zealand to be able to initiate or the union to initiate.
Seymour pushes back
However, Associate Education Minister David Seymour, who is overseeing the reintroduction of charter schools, rejected suggestions there was cause for concern.
"There's no threat to the Bill of Rights Act, that's absurd," he said. "As far as the ILO or anyone else that might hypothetically object, they're welcome to do that if they think that's the best course of action."
Asked whether that would applied if the UK or EU were also raising complaints, the ACT leader said that was a hypothetical scenario.
"The idea that we would put a hypothetical interest of somebody on the other side of the world ahead of the interests of children who we know are struggling with education in New Zealand today, really I think it's a question of values ... no, your line of questioning is hypothetical.
"Our priority is making sure that charter schools are best equipped to get the attendance and achievement results for the children in the school, not the adults in the school - and really I think the Labour Party have really shown their true colours."
He said staff or unions could compel the schools to join a MECA, and they should not have to.
"We're interested in protecting the ability of those people who are operating for the children and obligated to get academic and attendance results under their contract the maximum flexibility to do that, rather than putting labour laws in front of children's learning. We've done that for too long and it's actually time we put a stop to it.
"Frankly when people are more concerned about the adults in the school than the children, I start to get worried."
Belich said Seymour was entitled to his view on flexibility, "but there can be a lot of flexibility within multi-employer collective agreements, and often people find it easier because there's clear terms and conditions that mean that moving to a new employer is easier and more understandable. So I don't think that in and of itself is a justification".
"I think it's really important that we don't, for no reason at all, take away workers' rights just because the minister has decided he wants to have a new model of school where these rights just don't apply.
Attempts to keep report secret
The minority report said opposition members of the committee had asked Ministry of Education advisers about the legality of the changes, but were told "no information or advice of this nature could be provided to the committee due to this information being allegedly legally privileged".
"Through the select committee procedure, no advice was provided to the committee by officials in relation to these concerns, despite these issues being raised by members in questioning to the Associate Minister and by submitters during the select committee process," the report said.
It said Labour then sought separate advice "so this issue could be analysed and considered by the committee without the need to refer to the original information" including from the Ministry of Foreign Affairs and Trade, but this was voted down by a slim majority on the committee.
Opposition MPs also questioned in the select committee report whether the advice should be considered legally privileged, saying even if that was the case there were important reasons to make it public.
Belich told RNZ it was important for the committee to be able to evaluate advice on the matter.
"We ended up in a situation where despite requesting that advice from a number of sources, we weren't able to be provided with the advice that we needed - and an unusual situation where we were provided with some advice and it was redacted.
"We should be able to make decisions as a select committee and as members of parliament with the full information on the impacts of what such a move could be."
She did not believe there had been an abuse of process, but said there had been a lack of transparency.
"I think that as lawmakers, we have the obligation to consider the true impacts of our decisions before they become law, and in New Zealand, the select committee process ... should be one where all of the information is provided.
"I think there's definitely someone trying to hide this information" from the committee and the public."
However, Seymour said seeking confidential legal advice was common.
"Every government including Labour when they've been in government has the right to consult a lawyer and keep the confidential relationship with their lawyer," he said.
"They did it the whole time they were in government, and so will every government in the future and so will every person who hires a lawyer."
Asked whether Labour had broken any rules by releasing it through the select committee, he said voters would judge the party on that.
"If you get something that's not addressed to you, the right thing to do is to return it to its rightful owner. If you choose to release it to strangers that's not very good behaviour - especially when it has the effect to undermine the position of the New Zealand government."
Questioned on why it needed to be kept secret after it had already been released in draft form, he said "I've answered that one".
"Just like every other government in history and every person that's hired a lawyer they have what's called client confidentiality and they're allowed to keep the confidence of the legal advice they receive.
"Anyone who's trying to make that out as being unusual is either unaware of how legal advice works or just so angry about the idea of schools that give children some options they don't currently have that they're blind to the realities they're talking about."
