By Dana Johannsen of RNZ
Warning: This story includes discussion of suicide.
The mother of Rio Olympian Olivia Podmore has told a court that independent representation “would have made all the difference” when her daughter was experiencing difficulties in Cycling NZ’s high performance programme.
The Employment Court this week heard High Performance Sport NZ’s (HPSNZ) appeal of an earlier ruling requiring that it engages in collective bargaining with new athlete union The Athlete Co-operative (TAC).
Nienke Middleton joined several top athletes in giving evidence at Wednesday’s hearing on behalf of TAC, outlining Podmore’s challenges in the system.
The talented sprint cyclist died in a suspected suicide in August 2021 at the age of 24.
Middleton told the court how her daughter experienced “bullying” from coaches and officials, who acted “aggressively and arrogantly” towards Podmore after the young cyclist came forward with concerns about the conduct of one of the programme’s coaches.
Podmore was also involved in a selection dispute ahead of the Tokyo Olympics in 2021, believing her non-nomination for the Games was for political rather than performance reasons.
“If there was someone that could have stood up for Livi when she needed that, without her being afraid of what it would mean for her cycling career, that would have made a huge difference,” Middleton submitted in her brief of evidence.
“At the moment it all just goes back full circle to bite you in the butt if you stand up for yourself - proper independence absolutely would have made all the difference in Livi’s case.”
Middleton told the court she believed TAC’s goal of negotiating a collective agreement on behalf of its members would have a positive impact on the system.
“If a collective agreement for athletes is Livi’s legacy, then that’s something that I’m sure would make her very proud.”
Employment lawyer Kylie Dunn, acting for HPSNZ, elected not to cross-examine Middleton.
In his brief of evidence in reply, HPSNZ director of high performance Steve Tew offered his condolences to Podmore’s family on behalf of his organisation. He pointed to the coronial inquiry into the Christchurch-born rider’s death and said he did not want to interfere with that process.
During Wednesday’s hearing Tew repeatedly stated that HPSNZ was prepared to engage and consult with TAC on issues affecting its members.
However, Tew said the government agency cannot enter into collective bargaining with the union as HPSNZ does not have an employment relationship with athletes.
The shock loss of Podmore, and the independent inquiry into Cycling NZ and HPSNZ that followed, provided the “validation and momentum” for the establishment of TAC, which represents around 70 of the country’s top rowers and cyclists, TAC lawyer Andrew Scott-Howman said.
In his closing submission, Scott-Howman zeroed in on one of the recommendations of the inquiry, released in May 2022, that “HPSNZ consult with athletes at [Cycling NZ] on the contractor vs employee model”.
“An employment model is not impossible,” that report concluded. “HPSNZ and [Cycling NZ] each employ a significant number of people. Athletes are their raison d’être or reason for being, without them the [high performance programme] would not exist - [athletes] deserve the same protection.”
Dunn countered that the report was compiled in early 2022 following interviews conducted in the latter half of 2021.
“It was backward-looking, reflecting a position in time three years ago, and the evidence before you is that High Performance Sport considered it and acted upon it,” she said. “That need not trouble the court more than that.”
The long-running legal battle between the government agency and the country’s elite rowers and cyclists wound up in the Employment Court after HPSNZ challenged a determination made by the Employment Relations Authority (ERA) earlier this year.
The Employment Court appointed a full court of three judges, led by Chief Judge Christina Inglis, to preside over the case.
The earlier ERA ruling found that HPSNZ was legally obliged to enter into good faith collective bargaining with the athlete body, concluding “[it is not] a requirement that the union seeking to initiate bargaining have members that are, at the time of initiation, employees of the proposed employer party”.
HPSNZ appealed on the grounds that it does not intend to employ athletes now or in the future. The government organisation argued that if the courts compelled it to bargain with athletes, that would create concerning implications for not just HPSNZ, but other government agencies and businesses across New Zealand.
“We do not see any need for a collective agreement or collective bargaining when there are no relevant employees,” Tew submitted in his brief of evidence.
“We object to TAC’s attempt to use the collective bargaining framework to force HPSNZ to employ athletes when HPSNZ does not currently employ athletes, has no intention of employing athletes in the future, and has no legitimate grounds to justify entering into an employment relationship with athletes when the direct relationship is between athletes and their [national sports organisations].”
Scott-Howman challenged Tew’s evidence that national sports organisations are sovereign entities responsible for managing their own high-performance programmes.
He asked Tew if that reflected reality given HPSNZ appoints a performance team lead to monitor each environment.
“We are a government agency responsible for Crown funds and there are some criteria which the investment is based on,” Tew responded.
Tew was also questioned over the nature of the agreements between athletes and the national sports organisations, which include HPSNZ’s own provisions.
The court heard that rower Tom Mackintosh’s agreement with Rowing NZ included clauses that allow HPSNZ to amend the terms of the agreement at any time, and stipulations that Mackintosh must comply with HPSNZ’s requirements and may only use the support personnel designated by the government agency.
Scott-Howman put to Tew an additional clause that stated “funds can be withdrawn if in the opinion of HPSNZ the athlete is involved in, or carries out any action, statement or conduct which brings HPSNZ, the [national sports organisation] or sport in general into disrepute”.
Asked if High Performance Sport could terminate Mackintosh’s agreement if it believed the rower had said something to bring the organisation into disrepute, Tew responded: “There would be a conversation, that’s for sure”.
Wednesday’s hearing was the first time athletes have testified in open court about their experiences in the system. Several athletes made written submissions to the ERA ahead of the February 2023 hearing, but their names, and their accounts, were not made public.
Olympic rowing great Mahe Drysdale, who has served as the frontman for the union since its establishment in mid-2022, and Paris Olympians Tom Mackintosh (rowing) and Sam Dakin (cycling) both gave evidence in court. Olympic medallist Emma Twigg also submitted evidence, but did not appear as she was competing at a coastal rowing event in Italy.
Dakin, Twigg and Mackintosh told of a system they said was effectively controlled by HPSNZ because of the funding model and contractual arrangements with the individual sports.
Mackintosh, who crewed in the men’s eight that won gold at the Tokyo Olympics before switching to the single scull event for the Paris Games, is headed to Oxford University later this year to join its MBA programme.
Mackintosh told the court he has been in discussions with Rowing NZ about an “alternate return to training programme” for the next Olympic cycle. He said he met with officials just last week to discuss the level of support available to him through HPSNZ’s Tailored Athlete Pathway Support (TAPS) programme.
“I was explicitly told I would only have access to the support once my return to training plan was pitched to, and signed off by HPSNZ,” Mackintosh told the court.
“So while Mr Tew claims HPSNZ has no direct involvement with the selection of athletes, the reality is, my ability to continue within the programme and have access to TAPS funding is at the sole discretion of HPSNZ.”
The athletes also questioned the fairness of a system in which the support staff involved with their respective high performance programmes are often direct employees or contractors of HPSNZ, but the athletes are not afforded the same protections.
“I think that we deserve the same as all of the other people that are essentially in our team,” Twigg said in her brief. “All of those people can say that they’re fulltime employees except for me, and all of them have security that I don’t have,” Twigg said in her brief of evidence.
Mackintosh said his experiences after winning gold in Tokyo made him realise he “was sold a dream that a lot of other people benefitted from”.
Cross-examination of any of the athletes was minimal.
At the outset of the hearing, Dunn submitted that the evidence of the athlete witnesses “is not relevant to the legal issue before [the court]”.
“Representation and employment is not the same thing,” she said.
Scott-Howman agreed that the case was one of “statutory interpretation for the court”, but the experiences of the athletes were important to outlining the merits of TAC’s case and establishing the “nexus” that exists between the government agency and the athletes.
Dunn said in her closing submission that there was evidence before the court that HPSNZ had attempted to consult with TAC on various issues.
“TAC has taken the approach that it will only discuss matters in bargaining, and High Performance Sport has taken the approach that it will only discuss matters anywhere but bargaining, hence this litigation.”
The court has reserved its decision.
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