It is about time Workplace Relations Minister Iain Lees-Galloway investigates one of the more egregious employment rorts out there.
An employer – and not an obscure one – pays far less than the minimum wage. That employer carefully crafts its terms and conditions to avoid its workers being counted as employees at all.
Those stuck working under the employer’s terms have little choice about it.
Lees-Galloway’s government has been worried about zero-hour contracts and the difficulties unpredictable shifts can impose on vulnerable workers but the employer I’m talking about requires its workers to show up every morning, with no certainty of whether they will have any hours at all.
If they do work, the workers are paid a pittance: $31 for each half-day, with some potential for compulsory, unavoidable overtime.
If it’s convenient for the employer to keep staff on until 9pm, they’ll be paid $89 for the day.
If they stay later than 9pm – after a day that began at 9am – total compensation for the day is $127: easily less than $10 an hour. They may get some compensation for child-care: up to $80 a day for professional childcare, and $5 an hour for any after-hours care – if you can find a babysitter willing to work for less than a third of the minimum wage. And good luck making the arrangements when you have no clue when you might be allowed to go home from the job.
And, despite hefty increases in the minimum wage and rising wage rates overall, this job’s pay rates are the same now as they were in 2016. It is hard to tell just when pay rates were last reviewed.
The work can be tedious, at best, and emotionally fraught at worst. Workers have no choice. The employer offers counselling but prohibits its workers from talking, even with a spouse, about anything that happens on the job that isn’t on the public record. If you wake up screaming with nightmares because of what happened on the job, talking it out with your partner is legally risky.
So, while a day’s work can pay $127, failing to show up could incur a fine of up to $1000.
And forget about forming a union to push back against the employer’s overwhelming power. No labour inspector will ever come in to help these Kiwis, and the employer knows it. And most people accept all this as normal. They shouldn’t.
I’m talking about jury service, which is in desperate need of an overhaul.
It’s a deeply important system because being able to stand before a jury drawn from members of the community is an important bulwark against any potential over-reach of the law. It helps guarantee that justice is seen to be done.
And, if the application of the law in any particular circumstance would be unjust, a juror can always quietly exercise her conscience by refusing to find guilt regardless of the facts of the case. Two jurors might have prevented the conviction of Sean Davidson in 2011 for assisting his terminally ill mother to commit suicide some years ago. We might suspect that juror sympathy for the activists who vandalised the Waihopai spy base in 2008 helped ensure an acquittal.
But nothing inherent in jury trials requires that jurors not be compensated for their service. And failure to compensate them appropriately can have wide-reaching social consequences.
Larger employers, including government ministries, will often reimburse staff when they serve on a jury, so perhaps the problem seems less pressing to those in the ministries. But smaller employers may not be able to afford to pay the salaries of employees who are absent from work. And the self-employed can face even larger hurdles.
While those called for jury duty can plead that service would impose undue hardship, the growing gap between compensation paid to jurors and prevailing wages means jurors will be drawn from a pool that increasingly fails to reflect the breadth of the community. Employees of larger firms, retirees and those without childcare commitments will be more likely to serve while others will be more likely to find ways of being excused.
And the number of jury trials is growing. In 2014/15, just less than 2600 new district court trial cases involved juries. By 2018/19, the number had grown to more than 3600. The court system needs more jurors at exactly the time real compensation for jurors is declining.
Too big a burden
The Ministry of Justice argues that juror compensation is provided as an honorarium in recognition of jurors’ service rather than as recompense for lost wages but that seems the kind of dodge that Lees-Galloway is trying to stamp out in other contexts. Perhaps this kind of thing is only acceptable where the state is the one benefiting from compulsory service at sub-minimum wages.
Simply put, the random-draw selection process places too much of the burden of exercising one’s civic duty on people unlucky enough to draw the short straw, their employers and their families. That burden instead should fall on the tax base more broadly. Compensating jurors at a margin above the average daily wage that they report to Inland Revenue, or at a margin above the minimum wage for those not in work, would be fairer.
It would also reduce the number of those called who want to get out of jury duty.
And when the minister seems determined to make it illegal for individuals voluntarily to come to employment arrangements that work best in their own particular circumstances, such as Uber drivers who value the flexibility that that type of work provides, the government’s continued willingness to force people to work on sub-minimum wages seems a bit off.
Dr Eric Crampton is chief economist with the New Zealand Initiative