November 08, 2004

The Mark of the Beast

Tales from the Employment Relations Authority

Ben Thomas writes…

[Passages in italics are excerpts from the decision of Dzintra King in PMP Print Ltd v Barnes, Employment Relations Authority, Auckland Office, unreported, AA317/04, 28 September 2004, Member Dzintra King.]

As David W Young intimated in his excellent piece in the Listener, New Zealand's new frontier of justice is employment relations. Usually the employer is put on trial: it must “justify” its actions to the ominously named Employment Relations Authority. However, since 2000, an employer has also been able to use this machinery of the state to hold its employees to account.

PMP Print Limited sought a determination from the Authority as to whether the applicant’s instruction to the respondent, Mr David Barnes, that he comply with a new time keeping process, which involves finger scanning technology, is lawful and reasonable and in accordance with the contractual provision relating to time keeping.

The relevance of this, in a political-media context, is that the Authority is a much more interesting beat for daily newspapers than the tired old criminal courts. With abundant advertising dollars in the print media, it is a new theatre for playing out age-old dramas.

Mr Barnes refuses to use the system. He told me he didn’t feel that the company had the power to demand a fingerprint and it went against the grain with him. He seriously doubted its legality but could not point to any legal argument in support of his view.

The Authority is the newest and best news source for gory conflicts dripping with salacious details – the modern day equivalent of the Truth's “morality reporting” on divorce hearings. In an age of moral relativism, it is reassuring that the Authority can, and in fact is required by law to, deem some actions “unjustifiable”. The language of employment law – reasonableness, duty, obligation – is of a timbre rarely heard in mainstream society nowadays.

Mr Barnes also told me that the taking of biometric information would result in his being stamped with the Mark of the Beast.

The Employment Relations Authority is, officially, an “informal, low level tribunal”. It is not a court, and its investigations are not conducted like hearings. The "member" (the equivalent of a judge) can take on an inquisitorial role and is free to question the parties, witnesses and members of the public with impunity. The process is flexible and so, counter-intuitively, can resemble television courtroom antics much more than the real thing.

I enquired whether he would have a problem with using his left hand. Revelation 13:16-18 refers to a person being marked either on the forehead or the right hand. Mr Barnes believes the Biblical reference was to both hands.

In the drab criminal courts, 85% of defendants plead guilty and 90% of those who do not are found culpable anyway. In the Authority, employers and employees can bring claims, and the win-loss record is much more evenly shared.

The difference between the Authority and criminal proceedings is the difference between watching gladiators fight, and Christians being fed to lions.

He said he would let the police take his fingerprint. I asked why he would do that if the consequence was that he would not be able to participate in the Rapture. This is referred to in Revelation 20:4. ‘And I saw thrones, and they sat upon them, and judgment was given unto them: and I saw the souls of them that were beheaded for the witness of Jesus, and for the word of God, and which had not worshipped the beast, neither his image, neither had received his mark upon their foreheads nor in their hands; and they lived and reigned with Christ for a thousand years.’

Or perhaps it is more like the teenage-nerd card game, Yu-Gi-Oh. At any point in proceedings, a party can deliver the winning blow with one of the employment law trump cards: the Health and Safety in Employment Act, for example. Employees’ safety is paramount. An employee wielding this card may declare “my right to a safe work place beats your contractual right to set my work hours, you capitalist exploiter”. Or (in a cunning reverse made possible by the Air New Zealand drug-testing case) the employer might say, “your right to a safe workplace beats your right to privacy, so pee in this cup, you meth-addled loon”.

Health and safety is an automatic win. But in its absence, parties may win a clear points decision by playing combinations of lesser rights-conferring legislation - the Human Rights Act, say - and paint the other party as having unlawfully infringed those rights.

When this matter first came to my attention I was anticipating an argument on the grounds of indirect discrimination on the basis of religious belief. However, it is clear that Mr Barnes cannot sustain such an argument. If he had a sincere religious belief that he would be denied the Rapture because of the requirement to provide a fingerprint he would have to apply that to the taking of fingerprints by the Police as well as by the employer.

As one commentator recently noted, defamation laws stop all the best stories from being told. That's why bored journalists should see the Authority, with its public status and human drama, as an untapped goldmine.

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