N8 Ep98 Fri 8th Dec 2023 Disentanglement Politics from Law & Shane Kinley

Tonight Liz guides us through the main clauses in the Protected Disclosures(Whistle Blowers) Act which protects NZ's heroic whistleblower Barry Young under that act and also through the mechanism of that Act being bound to the Employment Relations ActShow more

Under Protected Disclosure Act - The Employer is forbidden to retaliate under section 21 - if retaliation occurs this section allows the employee to take out a personal grievance under section 103(1)(k) of the Employment Relations Act 2000.
Section 23 of this act also protects the Employee from civil, criminal, and disciplinary proceedings if they intend to or have carried out a protected disclosure

We also examine who is Shane Kinley - He is one of the main players at MBIE and now is an ERA member. He ruled in the case of Barry Young that an injunction was necessary to bring down the MoH data from sites around the world due to the harm that it may cause people - Which is false as the data did not contain peoples names.
The MoH itself is the cause of harm and death to tens of thousands of NZdrs - Barry is the hero that is bringing this to centre stage across the world.
We look at OIAs showing the conversations around the horrible advice given to PCBUs by Shane and MBIE. Unlawful infact. This advice has landed many PCBUs in employment disputes, the ERA, Employment Court and being force to payout to employees in out of court settlements. Hopefully these PCBUs are learning who they can trust and who they cannot.
The OIAs are on our N8 website - Links here:

Please share this video and support the work of the Number 8 Workers Union - we have lots of cases going through employer mediations, ERA hearing and the Employment Courts. We also spend time creating this content so you can become knowledgeable about the laws and legal systems in New Zealand which empower through knowledge.
Your support ensures we can carry on with all of this hugely important work

Please also support Amanda Turner with Number 8 in her Freedom of Speech Case through the Court of Appeal

And Ants the awesome barber from rotorua with his case against Worksafe
Links for these will be added shortly

Timeline:
1 – 00:00:00 – The main speaker is Liz Lambert, president of the Number 8 Workers’ Union of New Zealand. Tonight’s topic is the title “Disentanglement Politics from Law & Shane Kinley” and recap from Wednesday zoom about the Protected Disclosures (Protection of Whistleblowers) Act 2022.
- Wants to discuss data from a Zoom call in September 22 about COVID vax deaths and Canadians who analysed similar open-source data and found the same conclusions for the southern hemisphere. However, Barry’s data has death dates. Data link TBA. Matt King.
- Shane Kinley works at the Employment Relations Authority and agreed to an injunction stopping information spread about COVID data. Kenley previously worked 11 years at MBIE as director on workplace relations safety policy. Prior to that he worked at the Department of Labour.
- An independent task force was set up in 2012 after the Pike River mining disaster to review NZ's health and safety systems. It found a lack of consolidated data and inadequate coordination between agencies.
- The Department of Labour was dissolved in 2012 and incorporated into MBIE. Occupational health issues were not being properly addressed, with ACC doctors denying many claims. Repetitive strain injuries from tasks like keyboarding were not being covered. WorkSafe was implemented instead of occupational health.
- The task force recommended improving data collection and awareness of occupational health risks, but not much action was actually taken on these issues.

2 – 00:15:30 – Worker involvement in health and safety was a key recommendation from the Pike River disaster inquiry. Strong worker participation is essential for good safety performance (not health.) The Pike River disaster lead to the Health and Safety at Work Act (HSWA) 2015.
- Shane Kinley had worked at MBIE for 11 years on workplace relations and safety policy, including advising the independent health and safety task force set up after Pike River.
- In late September 2021, MBIE, WorkSafe and Crown Law got involved after workers requested information about COVID vaccines. They drafted Q&As stating employers (PCBU) did not need to discuss vaccine safety. They were guided to refer the worker a doctor or to the public health advise, employer can focus on good faith conversations.
- The drafts avoided mentioning the HSWA and focused instead on public health advice. But HSWA requires risk assessments for anything brought into the workplace.
- Emails show editing out references to HSWA and attempts to frame it under public law challenges rather than employment law. This ignored that secondary legislation cannot override primary acts of parliament like HSWA.
- The Employment Relations Authority initially supported MBIE but was later overturned by the chief employment court judge who cited obligations under HSWA regarding consultation. GF case and Tikanga - GF v COMPTROLLER OF THE NEW ZEALAND CUSTOMS SERVICE [2023] NZEmpC 101 [30 June 2023]
- Correspondence suggests Crown Law heavily influenced MBIE's response despite HSWA being the relevant legislation for workplace health and safety issues. The crown is political, why could they get into a person’s private live.
00:25:00 Liz dissects the OIA re Shane Kinley - MBIE-S-Kinley-Additional-emails-letters…

3 – 00:28:56 – Shane Kenley was working to finalize Q&A guidance for employers on discussing COVID vaccines with hesitant workers. It was intended for the MBIE website to help meet the vaccination order deadline.
- Emails show discussions between MBIE, Crown Law and others about the guidance. Ian from Crown Law had previously been in the NZ Defence Force.
- Workers had submitted extensive requests for information about vaccine safety that employers found concerning or "overkill".
- The guidance advised employers did not need to debate vaccine safety and should point workers to public health advice. But MBIE/MedSafe had not actually assessed vaccine risks themselves. However, Te Whatu Ora need not worry about risk as they gave themselves exemptions.
- There was discussion of "going hard" in the guidance and reliance on Crown Law's view. However, Shane noted the HSWA requires risk assessments for anything brought into the workplace. They gave employers confidence that they could just sack their unvaxxed staff.
- The covid tactics were like the Asch Conformity Experiment.
- Winston Peters had criticized experts for being wrong in their predictions, likely referring “covid experts.” The summaries reference extensive late-night work by MBIE/Crown Law to produce the employer guidance.
- It's unclear if Shane Kinley was a lawyer but he had a policy role, though was seemingly taking direction from Crown Law on the guidance.

4 – 00:40:33 – Shane Kinley and others at MBIE were communicating in late September/early October 2021 about draft Q&A guidance for employers on discussing vaccines with workers.
- Redacted OIA sections is likely Legal privilege claimed, meaning Shane Kinley was a lawyer.
- Liz suggests using the OIA/Privacy Act to request information from private organisations (not just public bodies) to get around legal privilege.
- The draft guidance stated a PCBU did not need to engage deeply on vaccine issues and should point workers to public health experts. But it confused workplace health and safety laws with public health laws.
- It noted an employer was only required to discuss workplace issues under the Employment Relations Act (ERA), not health and safety issues covered by the HSWA.
- A note referenced an Employment Relations Authority decision finding an unvaccinated worker was not unjustly dismissed*. But this would not set legal precedent without an Employment Court case. * See GF v COMPTROLLER OF THE NEW ZEALAND CUSTOMS SERVICE [2023] NZEmpC 101 [30 June 2023] – Judgement. Process discussion. Haywood?
- New Zealand historically had progressive early workplace health and safety laws but no dedicated ministry. 1894 Factories Acts laid out laws for woman and children in the workplace but was short-lived. Workers' compensation evolved into today's ACC system.
- There has been increasing politicization of workplace roles as union representatives enter politics. Andrew Little is used as an example of this pathway. Past zoom about unions: Ep. 78 - 20230915 (F) Union Consciousness.
- The guidance overall showed confusion between public health, employment and workplace health/safety laws.

5 – 00:53:42 – Liz providing further explanation of Section 23 of the Protected Disclosures Act 2020 regarding immunity from civil, criminal and disciplinary proceedings for whistleblowers.
- Barry had two separate situations. 1. Employment Relations Authority granted an ex-parte injunction to Te Whatu Ora to take down. 2. Criminal charges brought by police against Barry in District Court for allegedly stealing data. He is due to appear in court again December 18.
- The Act applies to employees, contractors and volunteers. The example case discussed was Barry’s and Te Whatu Ora from the Ministry of Health.
- Barry was instantly dismissed but is protected from retaliation under Section 23. He can take a personal grievance (PG) under section 103 (1)k) of the Employment Relations Act. 90 days to submit PG.
- Discussion of inconsistencies in the COVID vaccination data, with only 4 million of 12 million doses accounted for in the database. Pharmacies, pop-up sites etc. were not captured.
- Erika had provided more context on the database payment system in a previous video Episode 97 at the 43-minute mark.
- Concerns about lack of data on unvaccinated people and different definitions of acute vs. chronic death were discussed.
- The purpose of the Union is recapped as promoting safe and happy workplaces using employment and health & safety laws.

CONTENT LINKS
GF v COMPTROLLER OF THE NEW ZEALAND CUSTOMS SERVICE [2023] NZEmpC 101 [30 June 2023]
https://employmentcourt.govt.nz/assets/Documents/Decisions/2023-NZEmpC-101-GF-v-Comptroller-of-Customs-Judgment.pdf

The Asch Conformity Experiment
https://en.wikipedia.org/wiki/Asch_conformity_experiments

Ep. 78 - 20230915 (F) Union Consciousness
https://rumble.com/v3i0l9m-ep-78-n8-friday-15th-september-2023-union-consciousness.html

Protected Disclosures (Protection of Whistleblowers) Act 2022:
Section 23 - Immunity from liability
https://www.legislation.govt.nz/act/public/2022/0020/latest/LMS301283.html

Section 103 (1)(k) Employment Relations Act 2000:
Provides right to bring personal grievance for retaliation.
https://www.legislation.govt.nz/act/public/2000/0024/latest/whole.html#DLM60322

Liz Lambert Explains Protected Disclosures Act Section 21 and 23
https://rumble.com/v40bt2q-liz-lambert-explains-protected-disclosures-act-section-21-and-23.html

Revisit Wednesday's zoom - Ep 97 N8 6th Dec 2023 The Whistle Blower
https://rumble.com/v3zyr40-ep-97-n8-6th-dec-2023-the-whistle-blower.html

OTHER
Constitutional Freedom of speech Case in NZ – Fundraiser
Freedom of speech, our most fundamental freedom has been under attack, especially for the last 3 years. At least, the New Zealand Court of Appeal will hear arguments (Amanda Jean Turner and Te Whatu Ora- Health New Zealand in Respect of the Former District health board CA652/2023.
https://www.givesendgo.com/GBB4J

Amanda Turner - Fundraiser and info on N8WUNZ website
https://number8.org.nz/press-releases-news-updates/ground-breaking-nz-case-constitutional-freedom-of-speech-case/

ANTS HAINES: ‘MY BARBER' OWNER, ROTORUA: ON REFUSING TO CLOSE HIS BUSINESS OR COMPLY WITH COVID VAX PASSES, AND CHALLENGING WORKSAFE OVER $48,000 IN FINES 17 November 2023
https://realitycheck.radio/ants-haines-my-barber-owner-rotorua-on-refusing-to-close-his-business-or-comply-with-covid-vax-passes-and-challenging-worksafe-over-48000-in-fines/