Exploring the use of tikanga Māori in workplace personal grievances in Aotearoa New Zealand

Abstract

Discussions of the difference between Indigenous and Western legal systems, and the subsequent potential weaving of the two, have become a focus of Aotearoa New Zealand (NZ) law academics and practitioners in recent years. Furthermore, industrial relations may have the potential to further some of this weaving within the world of work. This paper explores the weaving of tikanga Māori (Māori legal systems) and English-derived state law within Aotearoa NZ workplace personal grievance processes, by explaining the meaning of tikanga Māori concepts and their potential application to workplace personal grievance processes. It asks: what is the tikanga Māori take–utu–ea (∼cause–reciprocation–satisfaction) framework in relation to workplace personal grievances? What role could such a framework potentially have in ensuring reciprocal, mana (status)-enhancing approaches for personal grievance processes? This paper shows how current workplace personal grievance processes in Aotearoa NZ often produce ‘winners’ and ‘losers’, and such outcomes are not conducive to maintaining or improving employment relationships. Such processes not only uphold obligations and duties to Indigenous peoples in a workplace context but also improve outcomes for all working peoples. Overall, this paper contributes to an emerging, broader discussion about the world of work and current grievance systems, and how these are unsuitable for the modern era, concluding that Indigenous solutions offer much prospect.

Introduction: Tikanga Māori and workplace grievances

All of this is a long way of suggesting that, in relation to employment law and practice in Aotearoa…, it may be time to replace the monocle with a fresh pair of spectacles. — Chief Judge of the Employment Court Christina Inglis (2021, 216)

Kotahi te kōhao o te ngira e kuhuna ai te miro mā, te miro pango me te miro whero – There is but one eye of the needle through which the white, the black and the red threads must pass. — Pōtatou Te Wherowhero (as cited in Ellis v The Queen [2020] NZSC Trans 19, 6)

For over 50 years, personal grievance machinery has been part of the industrial relations framework of Aotearoa me Te Waipounamu, hereafter Aotearoa New Zealand (NZ), to address individual employment relationship problems (Industrial Relations Act 1973; see e.g. Radich & Franks 2013). ¹ However, current processes oftentimes face difficulties in maintaining, let alone improving, employment relationships. Litigation-based adversarial processes have the potential to create ‘winners’ and ‘losers’ that inevitably strain already fraught situations. Through a tikanga Māori (Indigenous customary law and values) process, there lies a potential alternative avenue that addresses and redresses these complex matters so that better outcomes and improved employment relationships may be achieved. ² This considerable paradigmatic shift is one in which contractual obligations that assert authoritative attitudes and behaviours are replaced with humanistic and values-based approaches to further the aims of the employment relationship. This shift would allow for more voice and understanding within Aotearoa NZ’s multicultural and multi-worldview society.

This research has been inspired by the work of Chief Judge of the Employment Court, Christina Inglis (2021), and her paper, ‘The lens through which we look: What of tikanga and judicial diversity?’ While she recognises the challenges ahead, she also notes that it is time for employment law and practices to understand the many experiences in Aotearoa NZ society, so that the law and judiciary better reflect current realities. Furthermore, similar to the experiences of other Indigenous peoples, Māori are currently at the forefront of a vociferous backlash against their assertions of tino rangatiratanga (self-determination). This includes recent government initiatives to remove Māori rights within legislation (see e.g. Oranga Tamariki (Repeal of Section 7AA) Amendment Bill) and broader backlash against the mandatory teaching of tikanga Māori to law students (see e.g. Judd 2024).

This paper represents an initial exploration of the issue of personal grievances and tikanga Māori that understands and seeks to challenge the status quo. The world of work is imbued with oppression, the primary result of capitalist and colonial systems in Aotearoa NZ. Seeking to regain humanity in a system of work that currently aims to remove working peoples’ agency, voice, and power is a worthwhile challenge, especially in the contemporary context of harmful neoliberal edicts being enacted. In Aotearoa NZ, He Whakaputanga o te Rangatiratanga o Niu Tīreni (He Whakaputanga; Declaration of Independence) and Te Tiriti o Waitangi (Te Tiriti; Treaty of Waitangi) derive rights and obligations for both Māori and the Crown and subsequently non-Māori. As will be detailed, the failure of the Crown to uphold its obligations and additional claims to sovereignty have been detrimental, damaging, and wrong. Thereby, this paper seeks not only to discuss the interpersonal relationship of personal grievances between an employee and their employer but also the broader historical and ongoing socio-politico-economic effects of capitalism and colonisation on employment relationships.

The aim of this paper is to explore the meaning, potential, and application of a tikanga Māori take–utu–ea (∼cause–reciprocation–satisfaction) framework in workplace personal grievances processes (against current or former employers). This paper will achieve this through a sub-objective: To understand the potential role such a tikanga framework could have in ensuring reciprocal, mana (status)-enhancing approaches to resolving personal grievances.

As explained and translated by Hirini Moko Mead (2016) and subsequently used within this paper, take–utu–ea (∼cause–reciprocation–satisfaction) as a tikanga Māori framework is a tested and proven process as attested to by centuries of use that seeks to restore and rebalance strained or broken relationships. It is founded on the philosophy that no relationship is beyond repair (Jackson 2020). In te ao Māori (Māori world and worldview), everything on Earth and in the skies stems from the primal parents Papatūānuku (Earth Mother) and Ranginui (Sky Father) through the relational network of whakapapa (genealogy) that connects everything and is in balance. Accordingly, through this relational schema, when a breach occurs, that balance may be restored through reciprocity (see e.g. Jackson 2020).

Positionality, Methodology, and Method

Co-author 1: Xavier Walsh

I am a PhD student in Māori Studies at Waipapa Taumata Rau–University of Auckland with tangata Tiriti (Treaty person), namely, having Sri Lankan, Irish and British, ancestry. As a non-Indigenous researcher, I recognise myself as tangata Tiriti having the position, perspectives, and rights for myself in Aotearoa NZ being derived from He Whakaputanga and Te Tiriti. My background and experience with the world of work come from my intersecting position as a worker and co-president of Unite Union, the national hospitality union in Aotearoa NZ. Given the ethical and broader political issues of this research, I am aware of the need to ‘be particularly conscious of the politics and implication of one’s research’ (Voloder 2013, 10).

Co-author 2: Daniel Hikuroa

I am a researcher based at Waipapa Taumata Rau–University of Auckland with Māori (Indigenous) and Pākehā (settler) ancestry, and I draw from Kaupapa Māori practices in undertaking my scholarship. My background and experience relevant to this article lie in the application of tikanga in research.

Together, we are aware of some of the personal limitations of our research and the need to listen to and prioritise Māori voices in our work. Our scholarship aims to challenge Western-centric views and ensure that tikanga Maori is authentically and accurately represented. Our collaboration ensures that co-learning, consideration, self-reflexivity, and relationality are at the heart of our work, and it actively guides our research standpoint. We also note that Te Tiriti is a relationship that requires the joint responsibility and duty of both the Crown and rangatira, requiring both parties to uphold our nation’s founding document, and so our work is a collaborative effort in this sense as well. Having a Māori supervisor and tangata Tiriti student relationship and the nature of this research are examples of our collaboration.

This paper takes the form of a review. As such, the method utilised relies predominantly upon analysis of secondary sources such as relevant library catalogues, databases, book and journal articles, and occasional legal blog posts and academic writing in the media. We read widely across a variety of academic disciplines to limit bias during data collection, and we also acknowledge the current lack of collected data and legal cases. Also, we would urge other non-Indigenous scholars and practitioners who wish to pursue understanding in this nascent field to be cautious given the historic and ongoing issues within our context, one of imperialism and colonialism (see e.g. Smith 2021).

In relation to industrial relations theory, this paper utilises a radical pluralist approach to analyse and understand the role of workers in relation to their work by assuming that conflict exists in the employment relationship, which often does not favour working people (Watson 2017). This has been justified in part by the first co-author’s experiences with the world of work and in representing workers in their trade union role.

This paper has been intentionally structured to follow the evolution of Aotearoa NZ law as detailed by the now-Supreme Court Justice Joe Williams in his well-respected Henry Harness lecture Lex Aotearoa (Williams 2013). Therein, Williams describes three laws of Aotearoa NZ and their influence in attempting to map the Māori dimension in modern laws, these being:

• Kupe’s law, the first law of Aotearoa.

• English law, the second law of New Zealand.

• The third law of Aotearoa NZ, a modern-day weaving of the previous two.

Tikanga Māori: Kupe’s law – First law of Aotearoa

Prior to the British colonisation of Aotearoa NZ, the first law of Aotearoa – Kupe’s law – was brought across the vast stretches of Te Moana-nui-a-Kiwa, the Pacific Ocean, in a legal system guided by kinship-based values that is often referred to as tikanga Māori (Williams 2013). As Mead (2016, 19) notes, while tikanga Māori is often defined legislatively as Māori customary values and practices, a deeper and more meaningful understanding is found in his following definition: ‘tikanga refers to the ethical and common law issues that underpin the behaviour of members of whānau, hapū and iwi [Indigenous social units] as they go about their lives and especially when they engage in the cultural, social, ritual and economic ceremonies of their society’.

Recent decades have seen continual emphasis on tikanga Māori within the Aotearoa NZ legal system, particularly within criminal and land law. For example, section 9(2) of the Criminal Cases Review Commission Act 2019 requires at least one member of the Commission to have knowledge or understanding of te ao Māori and tikanga Māori. Additionally, section 2 of the Resource Management Act 1991 specifically defines kaitiakitanga (guardianship) in relation to environmental management issues. These examples are but two of the wider applications of tikanga Māori within the legal system of Aotearoa NZ, which indicates a further opportunity to explore a potential tikanga Māori approach that considers the multidimensional nature of Aotearoa NZ workplaces and personal grievances therein.

As a values-based approach towards dispute resolution, a take–utu–ea framework is a prime example of the kind of solution Chief Employment Court Judge Inglis (2021) has previously called for. Furthermore, a recent High Court judgement stated that ‘it is now well accepted that tikanga is part of New Zealand’s common law’ (Mercury NZ Limited v Waitangi Tribunal [2021] NZHC 654, para 103). Now, tikanga-centred cases have become increasingly evident. Within the employment law sphere, the recent GF v Comptroller of Customs (2023) NZEmplC 101 case is the first of its kind where neither party was Māori, the employee nor the employer. However, the New Zealand Customs Service was seen to be in breach of its duty of good faith and did not act as a fair and reasonable employer. This was because tikanga Māori had been incorporated generally. The argument that it applied solely to Māori did not hold up to scrutiny, particularly in regard to the institution’s Te Tiriti obligations. It should be noted that within the public service, good faith obligations are heightened as a result of the Public Service Act 2020.

Given these recent developments, it is timely for the issue of tikanga Māori within employment dispute-resolution processes to be considered. A whakatauākī (Māori proverb) may provide answers. It reads: ‘Taku ahi tūtata, taku mata kikoha; taku ahi mamao, taku mata kiporo’ (When my fire is close by, the point of the weapon is sharp, but when the fire is distant the point is blunt) (Mead and Grove 2001, 355 as cited in Mead 2016, 266). As these distant ‘fires’ (read: issues) come closer to home, it is vital that we sharpen our wits to deal with forthcoming matters. As noted, these cases have become increasingly common. The legal sector itself has noted the need for law students to understand and have some knowledge of tikanga Māori to be able to engage in critical and reflexive practice of the discipline. These understandings must also translate into employment law and broader industrial relations matters.

Current processes fail to respond to and restore the mana (power, authority, status) of both parties, the wronged and wrongdoer, and not simply the wronged whose mana was diminished. In te ao Māori, it is all parties to a dispute who are harmed when conflict arises, which has a flow-on effect to the tapu (sacredness) and mauri (life force) of those whose mana has been diminished (see e.g. Mead 2016). As such, a take–utu–ea framework is a potential avenue for redress for all parties to the employment relationship (employees, employers, and others such as trade unions), as it has been a means of redress that has served Māori well for centuries. Bennett and Kopu (2020) explain that in employment law, a good faith approach requires substantive justification and procedural fairness. However, this is not to say that mamae (hurt) and whakamā (embarrassment) cease once a decision is made, particularly in severe scenarios such as termination.

This was further addressed at the 2022 NZ Employment Law Conference in which Bennett et al (2022), in summary, explain the following points: first, that employment law is built on relationships, as is te ao Māori (the Māori world) and tikanga. Second, that adopting a te ao Māori approach and incorporating tikanga not only enhances employment law, given its natural alignment with a good faith approach, but also has the potential to incorporate mana-enhancing, rather than mana-depleting processes. Lastly, that tikanga, as in other jurisdictions, had a patchy application in employment common law.

It is important to emphasise employment relationships are plagued with power imbalances that benefit employers over employees (see e.g. Marx 1990). Notably, the Aotearoa NZ’s industrial relations framework – the Employment Relations Act 2000 (ERA 2000) – explicitly acknowledges this wherein it promotes good faith ‘by acknowledging and addressing the inherent inequality of power in employment relationships’ (section 3(a)(ii)).

In his formative work, Lex Aotearoa, Williams (2013) outlines the following tikanga Māori values as having particular importance within the law generally, and this may extend to employment law:

• whanaungatanga or the source of the rights and obligations of kinship;

• mana or the source of rights and obligations of leadership;

• tapu as both a social control on behaviour and evidence of the indivisibility of divine and profane;

• utu or the obligation to give and the right (and sometimes obligation) to receive constant reciprocity; and

• kaitiakitanga or the obligation to care for one’s own. (3)

However, one of the best arguments for applying tikanga Māori as an extension of good faith is made by Bennett and Kopu (2020). Together, they restate that the ERA 2000 does not refer explicitly to a definition of good faith; rather, it requires responsiveness and communication between the parties, with the aim of being active and constructive to the relationship. Thereby, the legislation leaves a wide berth of interpretation. They then add that te ao Māori, through tikanga Māori, provides a constructive response to the ‘birth of interpretation’ (Kopu & Bennett 2020, 3). Furthermore, they argue that this is because tikanga Māori has relationships and values at its heart and provides a foundation in which parties to the employment relationship may measure their compliance with the duty of good faith. It must be noted that Shelley and Kopu (2020, 3) conclude with the following warning:

Importantly, it would be an error to limit the application of the duty of good faith in a way that is consistent with te ao Māori to only those Māori organisations and/or employees that whakapapa Māori. Such principles are not restricted to Māori and as a result should not be offered as an ‘alternative’ to ‘normal’ processes. Rather, values and perspectives of good faith that are consistent with Tikanga Māori are beneficial for all; acknowledging and enhancing both employee and workplace. What will be required, however, is a shift in perspective for all those in leadership to represent and apply such values in an authentic manner.

Take–utu–ea is a tikanga framework for resolving wrongdoing and seeking rebalancing or repairing of relationships (see e.g. Mead 2016). There is a basic concept and expectation within both te ao Māori and te ao Pākehā (settler world and worldview) that a dispute-resolution process should follow when a grievance arises, although there are most certainly differences as to what both worldviews expect when such an issue arises. Oftentimes within a te ao Pākehā framework, this is seen more as a restorative practice model that seeks to restore balance where it has been disturbed (see e.g. Consedine 1999). What using tikanga does inherently well is ensure a form of ‘modern Māori justice in action – restorative, healing and reconciling’ (Consedine 1999, 82). In the case of personal grievances, tikanga Māori may offer integrity and greater well-being for individual workers, employers, whānau (families), and communities, and that mana and the relationship may possibly be protected and/or restored.

As a better, further explanation of the concept of take–utu–ea, formative expert Mead (2016, 31) asserts:

If an action is considered to be incorrect this gives ground for alleging a breach of tikanga. The breach becomes the take [cause], which requires a resolution of some sort. A breach, however, involves parties who are aligned with the wrongdoer and the wronged group. Both parties have to agree that there is a take before a resolution can be contemplated.

Once a take is agreed upon there is often an appropriate utu (recompense), or some equivalent gesture may be given to the wronged party. The reason for doing so is to reach a resolution satisfying all parties so that the matter is resolved. This is the desired outcome (i.e. mutual agreement on the means/terms of resolution), the state of ea.

The threesome concept of take–utu–ea comprises an analytical template for examining behavioural issues, but each term on its own is a principle of tikanga Māori. Each can be applied to a variety of situations and each is subject to many variables such as the mana of the persons involved in an event, the severity of a breach and the economic situation of the wrongdoers.

The benefit of using such a tikanga Māori framework over the current more adversarial approach is that it better helps to fully realise the duty of good faith. It also provides a means of enhancing the mana of all parties to the employment relationship when wrongdoing occurs. Many often think utu and ea refer to the act of achieving revenge; however, the concept more accurately refers to securing peace between both parties. Thereby, it is possible to understand the role of utu and ea within the employment relationship. As this tikanga framework begins with a cause, ‘take’, it elevates the tapu, requiring a response, ‘utu’, and finally reaching a state of balance again, ‘ea’ and ‘noa’, a safe level of tapu (Mead 2016), there is the possibility of using take–utu–ea to better understand and mend employment relationships when resolving personal grievances.

Building on Marxist critiques of labour, there is a clear historical origin for personal grievances. Despite their name signifying that they are an individual employment relationship problem, personal grievances are, in fact, derived in part from the introduction of waged labour as a result of the colonisation of Aotearoa NZ (see e.g. Miller and Ruru 2009; Mutu 2019). Additionally, in its current form, capitalist labour exists because of complex historic and ongoing socio-politico-economic upheaval (see e.g. Marx 1990), particularly due to colonisation in the Aotearoa NZ context (see e.g. Poata-Smith 2001). Settler colonialism commodified labour (Marx 1990; Poata-Smith 2001). In the context of Aotearoa NZ, this is best exemplified by the drastic reduction in Māori landholdings from the entire land mass of 26.8 million hectares down to 3.4 million hectares by 1921 (Locke 2010a). The newly emerged class of propertyless Māori were subsequently forced to enter the capitalist labour market. This process was ‘not gradual or harmonious, rather it involved brutal dispossession, violence and destruction’ (Poata-Smith 2001, 80).

The now-repudiated Doctrine of Discovery was a legal principle devised by the Roman Catholic church in the fifteenth century that ‘provided religious authority for Christian empires to invade and subjugate non-Christian lands, peoples and sovereign nations, impose Christianity on these populations, and claim their resources’ (Hunt 2023). While recognising the vast number of Christian faiths party to the colonisation of Aotearoa NZ, this later emboldened British settlers to engage in myth-making and active engagement with white supremacy, with their myths ultimately being required to justify the dispossession of the country and hence livelihood and well-being, ultimately usurping Māori power and authority (Mutu 2019). Charters (as cited in Hunt 2023) even goes as far as to explain that the Doctrine of Discovery is the only basis upon which the Crown could claim sovereignty in 1840 – a justification similar to that used in Australia.

Furthermore, there are some similarities between English experiences of enclosure – the appropriation of common land – and the Māori experience of ongoing dispossession of land driving them into capitalist wage labour (see e.g. Poata-Smith 2001). Workers have been intentionally made to engage with a system of work that is designed to negatively harm them and create structural grievances, which then in turn at times manifest as personal grievances (see e.g. Marx 1990). Generally, there is a cycle of violence and abuse, the roots of which lie in oppression and intergenerational and system-induced trauma for Māori and all workers due to capitalist and colonial systems (Walsh 2023).

Personal grievances: English law – Second law of New Zealand

After the arrival of Captain Cook and subsequent settlement, which saw the displacement of Māori and their tikanga, the second law introduced to New Zealand in the nineteenth century was one based more on classical libertarian values of individual autonomy, rather than kinship. According to this worldview (at least in theory), important economic relationships were entered into as defined by contracts with individuals exercising their self-determination through free choice (Williams 2013). The Lockean concept of property had come to define the relationship between autonomous individuals and their capital, with law and government justifiable only as a mechanism to protect private property (Williams 2013). Particularly in the post-Industrial Revolution era and within the context of Aotearoa NZ’s colonisation, these concepts also expressed themselves within employment relationships and the world of work. Much of the systems of work as it is currently understood began with the subjugation of workers to become wage labourers and the direct exploitation of their labour, thereby creating systemic grievances of workers against capitalism (see e.g. Marx 1990; Poata-Smith 2001; Walsh 2023).

The Hegelian lord–bondsman (or master–slave) dialectic exists to understand that true self-consciousness can only be achieved through an external, objective test of self-consciousness among a series of other self-consciousnesses, as such Hegel (1977, 111) writes:

Self-consciousness is faced by another self-consciousness; it has come out of itself. This has twofold significance: first, it has lost itself, for it finds itself as an other being; secondly, in doing so it has superseded the other, for it does not see the other as an essential being, but in the other sees its own self.

In essence, he states that the self-conscious’s identity is intimately entangled with other self-consciousnesses, whereby one’s own state of self-consciousness is dependent on recognition by other self-consciousness; therefore, it has essentially lost itself. So, one’s own self-consciousnesses may only recognise its own feelings, desires, and power, when drawing comparisons to other’s self-conscious’s feelings, desires, and power. Thereby, it is through comparing other self-consciousness to one’s own self-conscious that there may be recognition of what it does or does not have. This lord–bondsman dialectic is interpreted as focusing on the recognition of hierarchical social dynamic power imbalances, whether that be worker–employer, men–women, coloniser–colonised, and so on. In this way, one’s own self-consciousness can recognise that it is the oppressor or the oppressed, the ‘have’ or the ‘have nots’, and as a step towards liberation.

Wage labour is inherently exploitative within the current capitalist mode of production. There is an underpinning requirement for growth, often manifested by the insistence on business profit maximisation and worker productivity, which comes at the expense of low or stagnant wages and heightened hours of work. This results in an inherent ‘race to the bottom’ ensuring working peoples receive the ‘short end of the stick’ (see e.g. Walsh 2023). This partially forms the basis of understanding that capitalism is exploitative to workers, and one manner in which workers may manifest resistance is that employees may raise personal grievances against their (former) employers. However, the current system for personal grievances maintains exploitative processes rather than enabling structural change for workers against employers within the world of work.

Neoliberalism (as defined in Aotearoa NZ by government economic restructuring in favour of privatisation, removal of state subsidies, and instituted ‘user-pays’ systems (see e.g. Smith 2023, 110) has yet again been a continuation of this system. Workers’ rights have been rapidly degraded, with little-to-no return in the decades since. This can be seen in examples such as the lack of strength that unions possess today following the introduction of the anti-union industrial relations framework, the Employment Contracts Act 1991 (ECA 1991; see e.g. Locke 2010b). In some ways, this is comparable to how the Doctrine of Discovery is used to continually strengthen self-perpetuating myths of white supremacy, such as how the Waitangi Tribunal exists not to fully redress Treaty of Waitangi breaches, but instead allows for systemic Crown sovereignty to continue (see e.g. Charters 2022a). By adopting some, not all, pro-worker and pro-Māori legislative ‘wins’, these systems are able to satiate the anger of the masses while simultaneously upholding their power, thereby limiting true liberation from oppression. The notion of ‘winners’ and ‘losers’ exists within any adversarial grievance process, including structural colonial grievances.

Personal grievances form part of the systemic issue of work wherein worker exploitation is the cause of these grievances. As tikanga Māori is ‘a comprehensive philosophical framework from within which relationships were negotiated and disputes resolved’ (Mikaere 2011, 96), it offers a proven way forward in which these issues may be both addressed and mitigated and relationships restored. Employment relationships and the emphasis on difference are a human construct, yet whakapapa binds all things, with ‘the primal relationship of love for and with Papatūānuku. Because she is Mother’ (Jackson 2020, 140). So, following a relationship dispute, issues are resolved ‘because in whakapapa no relationship is ever beyond repair’ (Jackson 2020, 14); this is tikanga Māori, a restoring of balance to relationships.

Returning to personal grievances and their current form, the ERA 2000 legislative reform was led by then-Minister of Labour (now-titled Minister for Workplace Relations and Safety) Margaret Wilson, who was a professor of law specialising in public policy, employment law, and dispute resolution and an early proponent of teaching interest-based alternative dispute resolution in law schools (Morris 2015). This new legislation intended to transform ‘employment dispute resolution from a litigious, competitive model to a collaborative, consensual model’ (Morris 2015, 206). Perhaps there should be questions as to the true efficacy of this process given that it may not have been as successful as intended. What is clear though is the alignment of the legislative intent with tikanga Māori.

Furthermore, the key objective of government-provided mediation services, the Employment Mediation Service, is to provide a service, in an oft-repeated phrase by then-Minister of Labour Margaret Wilson (2000), that is ‘free, fast, and fair’. This sentiment is reaffirmed by former Department of Labour (now Ministry of Business, Innovation and Employment) mediator Peter Franks (as cited in Chauvel & Spackman 2005) as he states: ‘Mediation services are intended to be pro-active rather than being the ambulance at the bottom of the cliff’ (13). This reiterates that employment mediation, per the Object of the ERA 2000, is intended as a primary problem-solving mechanism, rather than the more tertiary intervention-type legal machinery that characterised the preceding industrial relations framework of the ECA 1991 (Wilson 2000).

In practice, what this means is that a worker can raise a personal grievance with their current or former employer for a series of reasons, including for being:

• unjustifiably ‘disadvantaged’ in their employment.

• discriminated against on one of the prohibited grounds.

• sexually or racially harassed.

• subjected to duress due to membership or non-membership of a union or an employees’ organisation. (Employment New Zealand 2023)

An employee may raise a grievance against their (current or former) employer by raising the issue and the reasons for it, preferably in writing. For example, an employee may raise an unjustifiable disadvantage grievance where their employer did not address an issue that made it harder for the employee to do their job properly, such as in instances where bullying or harassment occurred (Employment New Zealand 2023). While the mediation process is generally irrelevant to the broader argument, what is important is the continued emphasis on good faith within these processes and employment relationships generally. With increasing biculturalism (or multiculturalism) in the daily lives of people in Aotearoa NZ, tikanga has become increasingly prominent. It follows, therefore, that an aspect of good faith for employers must be engaging more with their understanding of tikanga concepts and practices. Although prior to the GF v Customs, Inglis (2021, 212) herself also notes that:

... the Employment Court has never engaged with tikanga in cases where one of [sic] more of the parties were not Māori – in other words, tikanga has not been engaged with as a thread of New Zealand’s common law but rather only as a term or reasonable exception of a Māori-orientated employment relationship.

The use of the language regarding ‘threads of law’ was an argument recently re-popularised during the Ellis v The King [2021] NZSC 114. Therein, the appellant’s lawyer, Natalie Coates, responded on whether tikanga Māori was relevant to a case regarding Peter Ellis, a non-Māori man, by using the Pōtatau Te Wherowhero quote noted at the beginning of this paper, in an emphatic ‘yes’. It is therefore possible that one may better contextualise the law as needing to weave the previous two laws of Aotearoa NZ – Kupe’s law and English law – to create a new third law of Aotearoa NZ as mooted by Williams (2013).

Inherent to our current systems and models of work is the notion that employment relationships are the domain of two parties engaging in a series of contractual agreements. This is a far cry from the reality. Employment relationships involve a wider group than those directly involved, including co-workers, whānau, and communities. Tikanga Māori may be able to provide opportunities that both restore and uplift the mana of all parties. So, if there is a system available that may potentially be more efficacious, cost-effective, and less damaging to involved parties, it seems logical and prudent to make it widely available.

Future of workplace personal grievances: Third law of Aotearoa New Zealand

From the 1970s onwards, and continually affirmed by recent legislation and rulings, the third law of Aotearoa New Zealand sees remaining Māori custom incorporated into legislation and key spheres of daily life (Williams 2013). Currently, and especially within recent employment law rulings, there is a movement towards a paradigm shift: employee–employer relationships are based on mutual values and not merely contractual obligations, with whanaungatanga being a guiding value within this process. This reiterates that within tikanga Māori, there is an imperative to maintain and restore relationships.

In te ao Māori, whanaungatanga connects all things through whakapapa (Mikaere 2005). Māori cosmogony informs us of the establishment of the first female–male union of Papatūānuku and Ranginui as the primal parents. Williams (2013) further posits whanaungatanga as the ‘fundamental law of the maintenance of properly tended relationships’ (4). In traditional Māori society, whanaungatanga was not just related to emotional and social ties between people and the environment. It was also just as importantly related to economic rights and obligation. Formative Māori legal scholar Moana Jackson (1992, 5) explains that:

The Māori philosophy of law, te maramatanga o ngā tikanga, was sourced in the beginning. From the kete [basket] of Tāne it was handed down through the precedent and practice of ancestors. Like an intricate taniko [embroidery] pattern, it was interwoven with the reality of kinship relations, and the ideal of balance within such relationships. It provided sanctions against the commission of hara or wrongs, which upset the balance, and it established rules for negotiation and agreement between whānau, hapū, and iwi [Indigenous social units]. It formulated a clear set of rights which individuals could exercise in the context of their responsibility to the collective. It also laid down clear procedures for the mediation of disputes and adaptation to new and different circumstances.

Prior to colonisation, the efficacy of tikanga was measured through the exercise of rangatiratanga, which was ‘a total political authority’ (Jackson 1992, 5). In the modern day, He Whakaputanga and Te Tiriti reaffirm this authority. Since they do not exist within a vacuum, employment grievances must enable employees to engage in their own self-determination. Within an employment context, the take–utu–ea tikanga Māori framework does this by rebalancing some of the social, economic, and, to some extent, political power employers have over employees.

As previously mentioned, recent legal decisions have favoured this ‘weaving’ of common law and tikanga Māori, recognising the inherent need to understand and engage with different worldviews within the Aotearoa NZ legal system. In a 2001 study paper, subsequently updated, expanded, and researched again in 2023, the New Zealand Law Commission advocated for a more substantial recognition of tikanga Māori within the current legal framework, even intentionally going as far as to disregard Crown sovereignty (see e.g. Mikaere 2005).

Further to this, as noted by Durie (2005), today, Aotearoa NZ has entered its fourth era with its political ideology being marked by its ‘reduction of state, devolution and deregulation’ as well as a ‘commitment to the Treaty of Waitangi’ (95), although that commitment is questionable. This is especially true as this current era is also marked as oscillating between policies of assimilation and policies of retention and development of Māori interests – although this changes depending on the government of the day. Nevertheless, as statute, the ERA 2000 injects much flexibility into the current industrial relations framework, enabling the law to be applied in a manner that responds to developments in the systems of work and society in which this work occurs (Inglis 2021).

While likely unnecessary, legislative change would likely only need to be in the form of an amendment to the ERA 2000, which could allow for tikanga Māori-based processes. However, the flexibility of the current industrial relations framework allows tikanga Māori to be used in some capacity already, such as in personal grievance mediation. However, the future seems clear: there must be a movement to improve personal grievance processes, and tikanga Māori may provide a meaningful solution. This not only improves outcomes for working people and their communities as well as employers but also helps uphold the internationally recognised and inalienable right of Māori to tino rangatiratanga as prescribed by Te Tiriti.

Although this is all far from new: as detailed within the Commentary to the Employment Relations Bill and Related Petitions 2000, multiple groups have been calling for the use of tikanga Māori within the process, including Māori trade unionists, for well over 20 years at the very least. As tikanga Māori becomes increasingly utilised in the Aotearoa NZ legal system, it seems clear that this is the path forward. However, recent scholarship has increasingly moved towards questioning Crown sovereignty’s legitimacy and legality. There is a relationship between employment law and practice, as well as questioning constitutional arrangements and their appropriateness.

In these respects, Claire Charters (2022a) has attempted to both explain and refute the Crown’s claim to sovereignty using tikanga, British, and international law by exposing the conflicting narratives of colonisation and their modern impacts. While not an explicit theme, like those often found in industrial relations research, there is a narrative of power that may be related to the issue of personal grievances. Charters (2022a) begins her discussion on what Moana Jackson (National Library of New Zealand nd) referred to as the colonial construction of ‘myth-takes’; ‘that is deliberately contrived falsehood about their being’. It is these falsehoods that have inherently prevented mainstream legal scholars from engaging in discussions around the Crown’s legitimacy to power, as well as the sense of collective amnesia many in Aotearoa NZ have. In particular, she points to the myth that New Zealand has been ‘good to Māori’. Rather, it has inherently harmed its psyche and needs to be ‘myth-busted’ (Charters 2022a). Furthermore, she goes as far as to describe the Crown’s claim to sovereignty under prerogative power as being contrary to well-established British common law at the time and might, therefore, be described as ‘illegally legal’.

In addition, by pointing to Mikaere’s work, Jackson (2005) states that current attempts to limit the rights of Indigenous people to self-determination reflect that colonisation is the present lived reality of our global societies. In Aotearoa NZ, the mistranslated text of Te Tiriti, which is the English text of the Treaty of Waitangi, has been wrongfully debated. Mutu (2010) rightly asserts that the notion that rangatira (chiefs) would cede their tino rangatiratanga and their taonga (treasures) to the Queen of England is not only bizarre but also humanly, logically, and politically impossible. This is because the mana of a rangatira, their ultimate power and authority, is derived from atua (gods) and is not ‘transferable’.

Rather, Moana Jackson (as cited in Charters 2022b), in reference to the Te Paparahi ō Te Raki (Wai 1040) claim, concludes:

So what Māori did… was grant to the Crown the right of kāwanatanga [governance] over the Crown’s own people… The Crown could then exercise its kāwanatanga over all European settlers, but the authority to control and exercise power over Māori stayed where it had always been, with the iwi.

Accordingly, because of these ‘legal myth-takes’ and questions of narratives driving sovereignty, it is inherently power – not law – that will resolve the questions related to sovereignty in this nation (Charters 2022b). For it is ‘power’ that is oftentimes what industrial relations seek to understand also. By understanding the concepts of power, one may begin to unpack the reality of the employment relationship in its current state.

The Matike Mai Aotearoa (2016) report sought to understand how a constitution that upholds He Whakaputanga and Te Tiriti through ‘genuine constitutional transformation’ would be possible rather than the current Westminster-derived constitutional arrangement. The report lays the foundation for genuine constitutional transformation in a manner that expresses the right of Māori to make decisions for Māori by Māori, in other words – tino rangatiratanga. Constitutional transformation is not far removed from understanding the potential role of tikanga in mediating personal grievances. Instead, it is part of a wider series of changes likely necessary to legitimise and facilitate wider discussions on genuine constitutional transformation. If small movements can be made to change the current colonial system of oppression, then steps should be made to ensure such movement.

Further to this, Charters (2022a) notes that to reconcile two people and two legal orders, more work needs to be done to overcome current everyday issues to ensure an inclusive Aotearoa for all that inhabit it. This means that the supposedly ‘little issues’, like personal grievance processes and understanding the effects of colonisation on systems of work, educating others, allowing space for understanding, and rectifying issues with the current system, are of vital importance.

Discussion

As a tikanga Māori framework, take-utu-ea is but one possibility that can be applied to personal grievance issues. The issue of tikanga Māori and the world of work is still a nascent field that is full of possibility and potential for further exploration. This paper took the form of a broad review, aiming to discuss many different issues that are broad and interconnected in relation to personal grievances. As such, industrial relations were not the sole focus, and other areas important to this discussion were also centred, such as history, employment law and practice, and constitutional transformation. It has aimed to give meaning to what tikanga Māori means within the workplace context, as well as offer a different worldview and solution process to personal grievance processes that would better ensure better enable reciprocal, mana-enhancing processes for parties to employment relationship when a grievance arises. However, as discussed throughout this paper, Aotearoa NZ must discuss what Te Tiriti means for all and in all aspects of society.

Without broader discussion and understanding of what genuine Te Tiriti engagement will mean for everyone in all facets of society, there is the risk of more backlash similar to the examples stated at the beginning of this paper, those being the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill and argument against the mandatory teaching of tikanga Māori to law students. If we consistently see Māori assertions of tino rangatiratanga resulting in conflict then, as expressed by Salmond (2021), the promise of Te Tiriti – ‘in the language of chiefly gift exchange to enhance the mana of all parties and bring all people and their tikanga together as equals based on a future relationship of reciprocity and mutual respect’ – has not and will not be fully realised in this current system: a system that, in her words, revolves around ‘racial antagonism, violent conflict, and bitter and lasting anger’ without a particular end in sight (Salmond 2021).

The future of the current systems of work would benefit from a shift away from contractual obligations between employees and employers and towards a system of mutually shared values. A world of work that exposes and opposes capitalist and colonial structures must be the ultimate goal. While there is much to explore in this space, it is certainly worth considering and exploring. Furthermore, Freire (2017, 18) argues that in our efforts to free ourselves from oppression, we ‘must not, in seeking to regain their humanity… become in turn oppressors of the oppressors, but rather restorers of the humanity of both’ (18). There is a task for all, tangata whenua and tangata Tiriti, to fulfil what Freire (2017, 18) calls ‘the great humanistic and historical task of the oppressed: to liberate themselves and their oppressors as well’.

There will be challenges with this, particularly in needing employer buy-in and also a lack of foundational knowledge in this area. However, this is not an insurmountable challenge. A less theoretical and more practical application of take–utu–ea will likely put all parties to personal grievances more at ease if they are more able to see themselves in the process and conclusions more meaningful than the current system allows: a future based on reciprocity and mutual respect; a future that both acknowledges the historic and ongoing grievances of individual workers, their whānau, and communities – take; a future that allows for appropriate reciprocation – utu; and a future where satisfaction of all parties is ensured – ea.

Conclusion: Where to next?

As had been made clear: ‘Tikanga regulated the lives of Māori when the first European settlers arrived in Aotearoa New Zealand. It has never ceased to do so’ (Ellis v The King, para 168). If there is to be reconciliation between two peoples and two legal systems, then that commitment must be whole, including in seemingly minor aspects of the law such as workplace personal grievances. As the New Zealand Law Commission (2001) points out, in the conclusion of their study paper of Māori customs and the law, that:

If society is truly to give effect to the promise of the Treaty of Waitangi to provide a secure place for Māori values within New Zealand society, then the commitment must be total. It must involve a real endeavour to understand what tikanga Māori is, how it is practiced and applied, and how integral it is to the social, economic, cultural, and political development of Māori, still encapsulated in New Zealand society. (95, para 402)

Furthermore, the New Zealand Law Commission’s (2023) recent study paper reaffirms and offers more evidence by introducing the concept of ‘te ihonui’, in which pūkenga (expert) Pou Temara identifies a representative liminal middle space between tikanga Māori and state law and a safe space for negotiation and achievement of solution. As such:

Te ihonui therefore represents a domain of unbounded potential, an inclusive space where the sides of a whare [house] come together to discuss issues, to negotiate unresolved tensions and seek a pathway through the challenges that confront us. Those challenges are not always small. The outcome may be elusive or uncertain. However, the challenge of weaving state law and tikanga together in a legitimate, authentic and coherent way starts by building an understanding of tikanga that is accessible to all New Zealanders. (282, para 10.12)

It is vital that all working New Zealanders, including policymakers, employment law practitioners, trade unionists, and academics, recognise the potential for tikanga Māori to be used within employment-related issues. There is a liminal space in which tikanga Māori and state law might come together to better negotiate tensions and seek pathways through confronting challenges, both among individual employment relationship problems and the broader issues that face the world of work.

As expressed by Inglis (2021), it is high time that the ‘monocle’ one-system of law is replaced by a more meaningful ‘pair of spectacles’ that better represents the bicultural and Te Tiriti-led future that is necessary within Aotearoa NZ society and the law which represents said society (216). While this paper is an initial exploration, it has revealed that there is certainly more work to be done and that this is certainly an area worth exploring. Tikanga Māori and broader Indigenous thought provide industrial relations and employment law with an opportunity to make further inroads to becoming more significant for all.

Rather than continuing with the status quo in which employment relationships are arranged according to a series of contractual agreements with inherent power imbalances, there are opportunities to allow for a more humanistic and values-based approach, which furthers the aims of all parties to the employment relationship. This is a far cry from the current system with colonial and capitalistic roots, which inherently is systematically violent. Furthermore, there may be opportunities to consider systems of work that justly honour the rights and obligations afforded to all peoples of Aotearoa NZ, tangata whenua and tangata Tiriti, by He Whakaputanga o te Rangatiratanga o Niu Tīreni and Te Tiriti o Waitangi.

This paper is an initial exploration of tikanga Māori and personal grievances processes within the workplace, originally researched as part of an Honours dissertation when Xavier Walsh recognised through personal, organising, and policy experience that the status quo of personal grievances within Aotearoa NZ is broken. It was through their university studies that they recognised that rather than needing to create something ‘new’, Indigenous knowledge and practice offered much prospect. Together with their supervisor, Daniel Hikuroa, they aim to continue this work together.

To conclude, without adjustment and rethinking, continuing with the current personal grievance processes will continue to create ‘winners’ and ‘losers’, which certainly does little to aid working people and their employers. This process is not efficacious for the desired productivity of the neoliberal capitalist regime nor for the maintenance or improvement of employment relationships. We would urge people to consider that, given the nature of these relationships being just that, relationships, we all consider a world of work that seeks to restore or rebalance relationships wherever harm occurs.