Academic journal article New Zealand Journal of Employment Relations (Online)

Employee-Citizens of the Human Rights State

Academic journal article New Zealand Journal of Employment Relations (Online)

Employee-Citizens of the Human Rights State

Article excerpt


In New Zealand, we are fortunate to live in a country where human rights are, in the main, taken seriously.1 As citizens, we can enforce a panoply of civil, political, social, economic, and cultural claims against the state and those invested with public powers. Certain civil and political rights are considered sufficiently significant to be affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA). Because the judiciary is subject to NZBORA, it is plausible that the common law may be developed in accordance with human rights, thereby giving NZBORA the potential for horizontal effect.2 Furthermore, the Human Rights Commission is charged with promoting all human rights,3 not only the vertical rights expressly affirmed in NZBORA. Despite this legislative and institutional respect for human rights,4 New Zealanders can be lax in upholding our rights in the face of corporate and organisational power.5 In particular, we may find it unexceptional that a citizen's basic rights to respect for their dignity, freedom of expression and privacy might be curtailed by an employment agreement. Corporate culture and reporting processes may also prevent employees from honouring their civic obligations to other citizens, such as warning their fellow citizens of corporate malfeasance.6 This paper argues against such a dilution of the rights and responsibilities of employee-citizens.7

This paper is at a developmental stage needing, on the one hand, significant fleshing out of legal details, and, on the other hand, the benefit of Occam's razor. A wide range of issues are broached in this paper, and, necessarily, these issues are considered at a level of basic principle; deeper and more specific analysis is intended in the future. This paper is structured as follows: the basic informing ideas are initially outlined. These are, first, the modern Rechsstaat (Human Rights State) is the moral and political community which guarantees rights and within which citizens claim rights and exercise responsibilities; and, second, full inclusion in the Human Rights State constitutes citizenship. It is then argued that the rights and responsibilities of citizenship should be fully exercisable within corporations. A fundamental right of refusal to comply with employer instructions unless they are conscionable8 will, in particular, further this goal. This paper concludes that full exercise of rights and responsibilities by employees will contribute to their flourishing as human beings. Furthermore, corporations will become more accountable to the moral and political communities in which they operate.9

Basic Ideas

This part of the paper outlines the basic ideas which inform the subsequent arguments. The objective here is to present a sketch of the Human Rights State, and to establish citizenship as full inclusion within that moral and political community.

The Human Rights State

The common law rule of law and the civilian Rechsstaat are closely cognate concepts.10 When the liberal democratic state was developing, focus for both English and Continental constitutional theory lay with the processes of the law, rather than its substantive content.11 Thus, for Alfred Venn Dicey, "the rule of law" meant that government should not possess arbitrary or discretionary power; the ordinary law of the land, administered by the regular tribunals, should apply to everyone; and "the general principles of law, the common law rules of the constitution ... are the consequences of rights of the subject, not their source".12 Following the Universal Declaration of Human Rights (UDHR),13 which was crafted principally in response to the atrocities committed during the Nazi era14:15

...the liberal rechtsstaat with its emphasis on the technical nature of laws was complemented by a deep concern as to the nature of such laws ... The rechtsstaat, declaring the supremacy of law, not only had to ensure that laws were properly passed, but also that they respected certain minimum notions of justice. …

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