People Against Prisons Aotearoa

Abolitionist Demand 45: Grant the same employment rights to incarcerated workers as those provided to non-incarcerated workers.

This is a part of No Pride in Prisons’ Abolitionist demands. These demands were originally published as a book. To see a pdf of the book, click here. To buy a copy, please email info@noprideinprisons.org.nz

Incarcerated workers are denied some of the fundamental rights guaranteed to many non-incarcerated workers. In a 1965 New Zealand Supreme Court ruling, Morgan v Attorney-General,^[1] it was found that incarcerated people directed to work by the Prisons Department (now the Department of Corrections) are not to be considered employees. Similarly, in a 2008 ruling, M & P Steelcraft Ltd v Ellis,^[2] an incarcerated worker on a job placement scheme was also found not to be an employee of the external employer.

These rulings allow the Department of Corrections to ignore employment legislation that regulate all other employers in New Zealand. It also means that those employing incarcerated workers on Release to Work programmes^[3] are not subject to employment law for the purposes of employing incarcerated people.  This means that incarcerated workers are not guaranteed the rights enshrined in the Employment Relations Act 2000 and the Minimum Wage Act 1983. These rights include the, however limited,^[4] rights to holiday pay and leave, sick leave, overtime pay, bathroom breaks, a minimum wage, and collective bargaining. Therefore it is entirely up to the Department of Corrections to determine the number of hours people work, as well as whether it will allow workers to have breaks or go to the bathroom during working hours.

Of recent concern is the fact that, with the passage of the Health and Safety at Work Act 2015 following the Pike River Mine Disaster, incarcerated workers are specifically banned from raising health and safety complaints with their employers, be they the Department of Corrections or a private employer.^[5] When workers do not have the right to raise concerns about safety in the workplace, exploitative workplace practices which put workers’ bodies in danger can continue.

No Pride in Prisons demands that the unassailable rights of incarcerated workers, as workers, be recognised in legislation. In this way, the struggle for the dignity of incarcerated workers would be shared with non-incarcerated workers. All the stripping back of workers’ rights over the past thirty years need to be restored and expanded. Solidarity between a powerful incarcerated workers union on the inside and non-incarcerated workers on the outside will help to end the exploitative practices of employers everywhere. This can only happen, however, by allowing incarcerated workers the right to unionise. It is only through collective action against exploitative employers that these demands can be achieved, and the bonds of solidarity between incarcerated and non-incarcerated workers be effective in the struggle to end labour exploitation.

^[1]Morgan v Attorney-General [1965] NZLR 134 (SC).

^[2]M & P Steelcraft Ltd v Ellis [2008] ICR 578 (EAT).

^[3] Department of Corrections, “Release to Work,” Department of Corrections, 6 March 2016. http://www.corrections.govt.nz/working_with_offenders/prison_sentences/employment_and_support_programmes/employment_activities/release_to_work.html.

^[4] Chris Flatt, “When Workers Rights Are Under Attack!,” The Daily Blog, 26 April 2013. http://thedailyblog.co.nz/2013/04/26/when-workers-rights-are-under-attack/.

^[5]Health and Safety at Work Act s 15.