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A recent Human Rights Tribunal decision has highlighted the importance of following a fair and proper recruitment process. The Tribunal has ordered a number of relevant documents be disclosed to an unsuccessful job applicant who has claimed he was discriminated against by reason of age.

Background facts
Mr Waters applied for two positions with Alpine Energy in January 2012. Mr Waters was interviewed by Alpine Energy for the position of Maintenance Engineer but was informed he was unsuccessful for the position of Engineering Officer. After the interview Mr Waters was informed that Alpine Energy had not received the level of interest hoped for this position, and they had handed the recruitment over to a recruitment agency to assist going forward. The agency made a number of candidate recommendations to Alpine Energy which did not include Mr Waters. Subsequently Mr Waters was not chosen for the position.

Mr Waters claimed that he did not get either position before he had been discriminated by reason of age. Mr Waters commenced proceedings under the Human Rights Act 1993 alleging age discrimination. Alpine Energy denies the allegations made by Mr Waters that age or employment status were relevant to its consideration of the application by Mr Waters.

Access to the successful applicants’ information
Mr Waters requested a large number of documents from Alpine Energy to support his discrimination claim. The hearing on 10 February 2014 was to determine whether Mr Waters could have access to these documents.

Mr Waters requested the CV’s of the successful applicants with personal information redacted as well as other documents including information relating to the experience and previous employment history of those applicants. Mr Waters also requested whether the successful applicants were interviewed, whether referee checks were carried out, and asked for a ‘candidate summary’ for both positions.

His reasoning for this request was because “they might assist in establishing, albeit indirectly, that the “record” shows that persons of younger age, with lesser skills, lesser qualifications, lesser direct experience and lesser time engaged in similar work or in similar position were considered more favourably and were ultimately successful in being appointed to the two advertised positions.”

Alpine Energy maintained that the documents being requested were not discoverable and could not be released to Mr Waters. Alpine Energy claimed that these documents were confidential and that a number of the documents had been destroyed.

Tribunal concludes the information is relevant and discoverable
The Tribunal stated that the relevant legislation is not dependent on the expectation of the person who made the communication e.g., the expectation that a record of a reference remain confidential. They also stated that the focus of the legislation is on public, not private interests. The Tribunal acknowledges the “public interest in preventing discriminatory conduct being hidden behind a clock of “confidentiality”.

The Tribunal ordered that the employer disclose the CV, application, employment history, listed qualifications, experience and other information relating to the applicants who were appointed to the positions of Engineering Officer and Maintenance Engineer.

Implications for you
The determination of the Tribunal has wide reaching implications for employers and job seekers. Be aware of what you can and cannot consider when it comes to hiring. For example you cannot discriminate based on sexual orientation, gender, family status or age. However tempting as it may be to ask questions about family status and age, we advise against this. The Tribunal has shown that it considers there is a public interest in preventing discrimination and documents relating to recruitment will be disclosed; any flaws in the process are therefore likely to be identified.

Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.

The intricacies of employment and mediation-mandated confidentiality agreements have recently been in the public spotlight after former Conservative Party leader Colin Craig remarked that, if a confidentiality agreement with his ex-press secretary were to be lifted, then the public could finally find out what had or “had not” actually happened between them, in the recent case involving Craig.

A confidentiality agreement clause or CA (also referred to as a Non-disclosure agreement or NDA) is a vital aspect of most employment agreements. A confidentiality agreement will also often be part of any employment settlement agreement between parties to resolve their employment relationship problems or dispute.

In most cases, confidentiality agreements are signed between two parties in order to protect any type of proprietary information or trade secrets from being leaked to the public.

However, confidentiality agreements can also cover non-public business information and information pertaining to the everyday activities of a business. In the case of Mr Craig and his former press secretary who had made sexual harassment allegations against him, the confidentiality agreement which he breached had been agreed to as part of a mediated settlement.

The length and duration of confidentiality agreements can vary but by and large most agreements bind the parties for life and prohibit either party from discussing events, people or trade secrets that they discovered whilst working at a particular employer or learnt during mediation.

What the Craig case has made ever more evident is how important it is for employers to ensure they have a legally sound confidentiality provisions included in their employment agreements which protect all parties from potentially harmful information that could be released by disgruntled employees and employers alike, following an employment-related problem or dispute.

Mr Craig has breached the CA by discussing events and information which were protected by the CA he had signed. Now his former press secretary wants to do the same to defend her position, yet she is worried that the Conservative Party may sue her for the breach of the CA. There have been a number of cases appear before the Courts for alleged breach of confidentiality agreements following mediation and the Courts are able to issue a penalty if this occurs.

There are two typical uses for confidentiality agreements for an employer.

It is common for employers to get their employees to sign a CA as a condition of employment. The purpose of such an agreement is to assure the employer that their employees won’t communicate or disclose the employer’s confidential information to anyone, particularly a competitor.

The CA should specify what information cannot be disclosed and should include information such as the employer’s business affairs, financial or commercial arrangements, clients or any other persons dealing with the employer as well as technical information relating to any product, business activity plan or process which the employer currently uses or is considering using in the future. CA’s can also prohibit an employee from discussing any confidential information that they have heard at the work place (even where such confidential information is not the property of the employer). As an example, an employee may discover some potential confidential information from a customer or a supplier.

There is a risk that a poorly worded CA in an employment agreement may not protect an employer in Court, so it is really important that you take the time to consider what information you want to be protected by a CA and ensure it is specified in any employment agreement. The necessity of having a CA as part of any agreement reached through mediation is to encourage parties to be able to speak freely and frankly safe in the knowledge that their words cannot be used against them in subsequent litigation if the dispute is unable to be resolved.

In the case of Mr Craig’s breach of the CA, he ‘selectively’ chose to abide by certain clauses set out in the agreement and deliberately breached others in order to, in his words, protect his ‘good name’ and it will be interesting to see if Mr Craig’s actions result in further legal action by the Conservative Party and/or his former press secretary.

In order to avoid for these things to happen in your business, it is important for employers to implement confidentiality agreements when drafting of employment agreements and to make sure that their employees know their obligations pertaining to these agreements. Communicate to your employees the importance of abiding by their confidentiality agreements and not disclosing any potentially harmful information about their employer or its employees.

Furthermore, if there is any form of silver lining that can be garnered from this recent case involving Conservative Party’s Colin Craig and the dispute with his former press secretary, it is how vital the inclusion of a CA clause in an employment agreement so as to avoid any potential damage in the future.

Janet Copeland is uniquely positioned to assess your business needs and advise you whether or not your business should be considering including a CA in your employment agreements. We can help you tailor specific CA provisions into the original employment agreement in order to help protect you and your business from any form of future dispute regarding confidentiality in the workplace. After a comprehensive review of your business and the nature of your employment agreements, our lawyers are specialised in establishing concise and clearly drafted CA provisions for your business.

Please don’t hesitate to contact us if you are concerned about confidentiality breaches in your workplace or if you are interested in finding out more about how to employ an effective confidentiality agreement clause in your standard employment contracts.

We are only a friendly phone call away.

Applications under the Essential Skills category

Over recent months we have seen an increase in calls from clients who employ migrant workers. Their employees are coming up against a stricter approach to the renewal of their Work Visa. They are being advised by Immigration New Zealand (“INZ”) that their employer’s attempts to recruit New Zealand residents into that particular role have been inadequate. What has become apparent is that employers are failing to meet the INZ requirements to support their employees in applying for work visas, even where their actions had met the requirements previously.

This change in approach by INZ stems from a perception that employers are becoming increasingly reliant on migrants to supplement the local workforce and in particular, are reliant on extending work visas for their existing migrant employees instead of making genuine attempts to go back to the market and attract New Zealander workers.

An employers view that their migrant worker is highly valued, well regarded or well settled are irrelevant to INZ for the purposes of a visa application. INZ holds the view that migrants will accept any job on any terms and conditions simply because they are both eager and thankful to have work in this beautiful part of the world. The flow on effect is that migrant labour reduces remuneration rates and New Zealanders are being overlooked, even if they are willing to be trained or relocate to the region where the work is being offered. Consequently, INZ have tightened up their visa processing checklist.

Migrants who apply for a work visa under the essential skills category must prove they have a job offer from an employer. If the job is not an occupation on the INZ skill shortage list then employers who have advertised the job in New Zealand and make genuine, but unsuccessful efforts, to recruit a suitable New Zealander for the position can then look to employ migrant workers. The migrant worker can apply for an Essential Skills Work Visa and the employer must provide a completed ‘Employer Supplementary Form’ and supporting information demonstrating their unsuccessful efforts to recruit New Zealanders.

Our Advice

Don’t forget that a temporary work visa is just that – temporary. When a migrant worker goes to ‘renew’ their visa, the employer should treat the application as a fresh application each time.

It is now critical that employers advertise not only locally but nationwide, even where you haven’t previously. Employers should not rely on advertisements placed in local newspapers, bulletins or notices and should recruit at a national level via key newspapers and job search websites such as TradeMe Jobs or Seek. INZ also encourages employers to list the job vacancy with Work and Income which can easily be done by accessing and submitting a form online. Employers should consider listing with a recruitment agency, such as Progressive Consulting, who will do all the time consuming work for you; draft an appropriate advert, advertise through the correct media, screen, shortlist and interview suitable applicants and write to INZ with details and the outcome of the process.

INZ also have a keen eye for advertisements that may discourage potential applicants or that are embellished to link directly to a migrant worker applying for the particular position. Keep the adverts generic and avoid exaggerating qualifications or language requirements and the type and length of work experience expected, unless the expertise is truly attributable to the position and you can justify it.

Unfavourable pay, hours of work and other conditions of employment which could be considered as deterring applicants will also be an instant red flag. Do your research on market pay rates and employment conditions comparable to the position being advertised and provide objective documentation to INZ to validate the terms and conditions of employment if they are called into question. INZ don’t always get it right and national market rates should not dictate regional market rates, particularly in the Otago/Southland region.

From the outset, refer to and ensure the position ‘substantially matches’ the type of work, duties and responsibilities as outlined under the Australia New Zealand Standard Classification of Occupations (ANZSCO) website. INZ do not like to see a ‘cut and paste’ job description taken from ANZSCO but a true account of the employee’s daily tasks that is also comparable to the most appropriate occupation on the ANZSCO list will be viewed favourably.

When it comes to screening and interviewing, shortlist only those applicants suitable for the position and once interviewed, if unsuitable, keep detailed notes of your reasons why and provide these to INZ.

Only lawyers, and licenced immigration advisors can lawfully provide immigration advice so if you do assist a migrant worker with the visa process avoid giving them immigration advice and/or seeking legal advice on their behalf.

If you need more information or assistance, please don’t hesitate to contact us.

Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. We recommend that you obtain legal advice specific to your situation before proceeding and would be happy to help in this regard.
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By Lucia Vincent

Everyone wants those whom we love and trust to remain faithful. No one likes being betrayed – even our pets must live up to our expectations of fidelity.

But do we accept unfaithfulness and disloyalty in some situations? Do I mind if my dog prefers someone else’s company if it means she’s stopped barking? Is it ok to cheer for Australia when they are playing France? Should values like faithfulness and loyalty apply to our employment relationships too?

Within our workplaces most would condemn an employee who sets up their own business based on relationships with their employer’s clients while working.

But what if an employee’s personality and long hours are the main reason those relationships flourished? What about promises from clients and colleagues to join a manager in their new venture – is it fair to forget to pass on knowledge of that allegiance to your soon-to-be former employer?

Some may feel as though they could morally justify their behaviour because they worked hard without recognition or didn’t get the pay rise they deserved. But they would be forgetting about the duty of fidelity and how much breaching it can cost them if their employer takes disciplinary or other action against them personally, not to mention the devastating affect on their employer’s business.

Gotta have good faith
Parties to employment relationships must deal with each other in good faith even if a written agreement fails to say so. The Employment Relations Act 2000 (Act) codified good faith early on saying that at the very least an employer and employee cannot directly or indirectly do anything that is likely to or actually misleads or deceives the other.

In 2004 the Act added to its key provisions – that good faith goes beyond the implied mutual obligations of trust and confidence. Good faith requires parties to actively and constructively establish and maintain a productive employment relationship in which they are, among other things, responsive and communicative.

But before Parliament even put pen to paper, the Courts recognised the duty of fidelity in employment relationships. Being faithful means that an employee must act in the best interests of their existing employer. This precludes an employee from using their employer’s time to conduct activities in competition or using business opportunities that arose during employment to personal advantage (unless an employer expressly consents to it).

It also requires an employee to inform their employer of all information relevant to the business. Relevant information would include an existing client promising business to an employee after they have left or an opportunity arising during work time to secure a commercial opportunity personally or for the benefit of another party.

Being faithful to your employer does not necessarily prevent an employee from taking steps outside of work hours to prepare their business if they only start competing after they leave.

But an employee must be careful not to go too far and needs to be aware of any other duties. For example, for an employee to work on obtaining business from their employer’s clients before they actually finish work would be too far, and any operative restraint of trade can hamper attempts to compete post employment. The extent of the duty of fidelity depends on the circumstances in the specific employment relationship, but it usually stops at termination.

Passively stealing customers is not OK
But it’s ok if customers come to you, right? Aaah, not if you are still employed.

The Court of Appeal has made it clear that a Sales Manager could breach the duty of fidelity by failing to pass on a key client’s concerns and going on to personally gaining by obtaining significant work with that unhappy client (to the detriment of their employer), all prior to resignation:
It is of no moment who makes the first approach. The duty of an employee in such circumstances is to reject categorically any such approach, to report it to his or her employer along with any criticisms made of the employer and to work with the employer to rectify any perceived shortcomings.1

So it seems pretty clear that employees must be wary about inappropriate customer loyalty and report any approaches from customers to their employer. This enables the employer to deal with any difficulties appropriately and smoothly transition customer relationships with the assistance of their employee.

An employee’s premature exit (such as abandoning their employment), accompanied by key clients, is quite likely to breach the duty of fidelity that is likely to require an employee to ensure a smooth transition before leaving, especially senior staff with an ability to materially influence clients.

Best be discreet about leaving Senior staff tempted to tell their direct reports, clients and suppliers they’re leaving before they tell their employer? Exiting employees should consider keeping mum or at least being more discreet about their plans to depart, especially where they haven’t told their boss yet.

The Court of Appeal has confirmed that an employee can be disloyal by telling staff before their boss that they are leaving and approaching various suppliers to see if they would supply the employee’s new business. Canvassing suppliers and causing rumours to start circulating about what might be going on at your employer’s business can be seen as undermining your employer’s reputation and good will. It could be made worse where an employee is a Manager with access to confidential financial and marketing information and a foreseeable risk exists that reporting staff may leave too:
It is one thing to plan to leave your employer and set up a competing business if you proceed with discretion. It is quite another, in my view, to do so in such a way that your plans become widely know but without telling your employer, and in a way which is potentially damaging to your employer.2

Breaches costly
Breaching the duty of fidelity could result in an employer justifiably taking disciplinary action against an employee. If it’s serious enough it could result in summary dismissal.

Leaving anyway? An employee should start worrying if they have taken steps to undermine their employer before they have left because any proven breaches could cripple that employee financially.

Recently the Employment Court demonstrated its willingness to award substantial damages (nearly $4.3 million) against employees who were found to have breached their duty of fidelity resulting in losses to their former employer.3

Among many steps taken by the three senior managers found to have breached the duty of fidelity, were securing customers and staff for their own company whilst employed and taking or deleting key company information used to undercut quotations made by their employer to gain work for their new business.

In an earlier decision the Employment Court stated that all three managers owed an implied duty of fidelity and an obligation to act in good faith that prevented them from making approaches to clients or potential clients of their employer on behalf of their new company before they stopped working. This potentially included approaches to prospective clients due to “… circumstances in which top management may not profit from business opportunities that became known to them while in previous employment.”4

Senior employees ought to exercise additional caution when aware of another employee’s breach too:
If an manager or senior employee observes actions that are harmful to the employer it is no great extension of the duty of fidelity or trust and confidence to require that employee to report that conduct to the employer (sic).5

Discouraging Disloyalty
Even without a written agreement telling staff and employers to behave in good faith – you just gotta!

The substantial remedies available to employers who suffer loss as a result of an employee beaching their duty of fidelity should discourage employees (and especially senior staff) who might undermine their existing employer to boost their new venture by taking key clients, staff and/or information.

Even if an employee feels indignant about a lack of recognition or paltry pay rates, these factors alone would rarely, if ever justify failing to act in their employer’s best interests while at work. Like any relationship, the parties to an employment relationship must rely on a mutual trust and confidence.

An employee tempted to poach staff, steal customers or even speak openly about their departure plans with suppliers, should remind themselves of the consequences if caught – not only might they lose their job, but they could face costly claims for damages too.

References:

At 38, Morris v Interchem Agencies Ltd [2003] 1 ERNZ 93.
At 518, Big Save Furniture Ltd v Bridge [1994] 2 ERNZ 507 (CA).
Rooney Earthmoving Ltd v McTague [2012] NZEmpC 63.
At 120, Rooney Earthmoving Ltd v McTague [2009] ERNZ 240.

Disclaimer

We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.

First published in The Otago Daily Time – 7 September 2012
http://www.odt.co.nz/news/business/224908/law-blog-being-faithful-your-e…

The recent Employment Court case, Rainbow Falls Organic Farms Limited v Rockell overturned the Authority decision to award $42,793.12 in lost wages and found that Mr Rockell had not shown he had worked the extra weekends or public holidays that were claimed.

Facts

Mr Rockell was dismissed from his position of Farm Manager at Rainbow Falls in May 2011. The dismissal related to Mr Rockell tipping and/or lopping off horns of several of the cows against the Farm Owner, Mr McKenzie’s, wishes. Following his dismissal Mr Rockell claimed a considerable amount of money was owed in wage arrears in accordance with section 131 of the Employment Relations Act 2000 (the Act). Mr Rockell claimed that he:

Worked a full day on every public holiday, even when the cows were dry (equating to 52 days),
Accrued 10 weeks annual leave, having had no annual leave in the first half of May 2007, only two weeks annual leave in 2008, 2009, and 2010 and no annual leave in 2009,
Worked 68 weekends which he was otherwise entitled to have off.
Employment Court Decision

The Employment Court analysed section 132 of the Act which states that where an employer has failed to keep wage and time records and that failure has prejudiced the employee’s ability to bring an accurate claim, the Authority or Court may, unless the defendant proves that those claims are incorrect, accept as proved all claims made by the employee in respect of the wages actually paid and hours, days and time worked. The Authority had no trouble relying on this section in favour of Mr Rockell, however the Employment Court chose to focus on the word ‘may’ and decided that the section was discretionary rather than mandatory.

The evidence established that there was never any requirement imposed by the plaintiff for Mr Rockell to work on a weekend he would normally be entitled to have off. Mr Rockell was in a managerial position and ran the farm on a day-to-day basis. He confirmed in cross examination that he organised his own leave around his work commitments and was effectively in complete control.

Mr McKenzie’s evidence, which the Court accepted, was that Mr Rockell was never required to work on any weekend that he would normally be entitled to have off and that he was never informed that Mr Rockell had worked on a statutory holiday. Mr McKenzie believed that Mr Rockell was taking leave when the farming commitments allowed.

It is clear from the judgment that Mr Rockell did not come across as a credible witness, making a large number of admissions while under cross examination. The Judge also noted that it was simply not credible that, if Mr Rockell had leave owing (particularly significant quantities of leave), he would not have raised it much sooner, rather than waiting until a very late stage.

Judge Inglis went so far to say that even if she accepted that Mr Rockell did not work public holidays and failed to take annual leave or take days in lieu as claimed (which she did not), it is clear that that election was entirely his own.

Judge Inglis concluded that she was not satisfied that Mr Rockell actually worked on the public holidays or weekends claimed, or that he had any outstanding annual leave entitlements as he asserted. She chose not to apply s 132 of the Act in favour of Mr Rockell. The only monies that the Court awarded were the unpaid notice period which came to a total of $4,583.00 plus interest. This is a far cry short of the $42,793.12 that was originally awarded in the Authority.

While this case did turn out in favour of the employer, it is a timely reminder that timesheets and wage and time records are so important, especially when you are a Farm Owner with limited day to day contact. Had the employee had proof of public holidays worked, and leave taken, the outcome may have been significantly different. If you struggle to keep these records or keep up with the legislation in regards to leave and public holidays, consider outsourcing your payroll. Please do not hesitate to contact us if you would like more information about a payroll provider.

The Employment Court in Austin v Silver Fern Farms Limited [2014] NZEmpC 30 has turned the spotlight on an ACC accredited employer and how that role relates to the core employment obligations such as good faith.

FACTS OF THE CASE:
Silver Fern Farms Limited (SFFL) was an accredited employer for accident compensation purposes. This means an employer assumes what would otherwise be the rights and obligations of the Accident Compensation Corporation (ACC) in respect of its employees’ work-associated accidents. SFFL’s specific scheme directly linked the employee’s incapacity as a result of an accident and the employment relationship, including potentially its termination.

Mr Austin, a SFFL employee, was involved in a non-work related accident from go-kart racing in January 2009. This resulted in bruising to his backside. Mr Austin continued to work normally at SFFL until he injured his back at work nine days later. Mr Austin then claimed accident compensation coverage from SFFL which was granted. SFFL later became aware of the bruising from the non-work related incident through a medical report and discontinued the compensation. They concluded that the current incapacity arose from the non-work related injury rather than the work related injury.

Mr Austin was terminated for medical incapacity in August 2009. He raised a personal grievance for unjustified disadvantage and dismissal however the personal grievance was raised after the legislative 90 day time limit had expired.

THE COURT’S DECISION

The Court was required to decide whether they would grant leave to the employee to pursue his personal grievance outside of the 90 day time frame. In doing so the Court needed to decide firstly whether exceptional circumstances existed and secondly whether it was just to grant such leave.

In determining the above matters the Court recognised the complex inter-relationship of the Employment Relations Act 2000 (ERA) and The Accident Compensation Act 2001 since SFFL was an accredited employer. Because the accident coverage scheme was part of Mr Austin’s terms and conditions of employment the Court determined decisions made in regard to this must attract the good faith requirements.

SFFL was required to deal with Mr Austin in good faith, to not mislead or deceive him or to do anything that was likely to mislead or deceive him, whether directly or indirectly. SFFL were also required to provide Mr Austin with all relevant information before they made the decision to cease accident compensation coverage and provide Mr Austin with an opportunity to comment.

The Employment Court determined that exceptional circumstances did exist and it was just to allow the grievance to be raised out of time.

WHAT DOES THIS MEAN FOR YOU?

If you are an ACC accredited employer the obligations of good faith apply to the decisions you make under that scheme. For example an employer that is making a decision about coverage and compensation needs to tell the employee any decisions they are proposing to make, provide the employee with all the relevant information and give the employee an opportunity to comment before they make that decision.

Relevant information could include medical reports, the relevant job description, rehabilitation information etc. Put simply, anything the employer will be considering when they make their decision must be put to the employee for comment before any decision is made.

This decision is significant because the ACC legislation does not specifically require ACC to act in good faith and provide the employee with an opportunity to comment on all relevant information. Accredited employers are therefore held to a different standard than ACC.

Background

The Ministry of Business, Innovation and Employment (MBIE) visited 41 employees in the Queenstown region in August 2014 alone, to check their compliance with employment and immigration laws.

The Ministry has stated “The level of non-compliance identified during this operation was disappointing … It is surprising that there are still employers who do not have written employment agreements and are failing to maintain records compliant with minimum standard legislation” (MBIE acts against Queenstown breaches of employment laws, 25 November 2014)

With an increasing focus on these surprise workplace assessment visits, all businesses need to ensure they are compliant with employment legislation, to avoid a Christmas or New Year surprise they’d rather not get. Let’s look at one key area all businesses can easily be compliant in: Employment Agreements.

Employment Agreements

An employment agreement sets out the terms and conditions of the job for each employee.

The law requires all employers to provide a written agreement to employees, no matter what kind of job or hours they perform. This is often an individual employment agreement, but if your business is a party to and your employee’s work is covered by a collective agreement, then you must inform the employee of this, that they may join the Union, how they can contact the Union, and that they will be covered by that collective agreement for the first 30 days of their employment. After 6 March 2015 this will change so that an employee is not automatically covered by the collective for the first 30 days of their employment and can immediately enter into an agreement with you individually.

At the time of giving an employee a copy of any individual employment agreement, an employer must:

Advise the employee they are entitled to seek independent advice and a reasonable opportunity to do so:
Consider any issues raised by the employee and respond to them:
Inform the employee of their entitlements under the Holidays Act and that they can obtain further information from any Union or MBIE
Employers should retain the signed version of the agreement and provide the employee with a copy of the agreement for their own records.

What does an employment agreement need to include?

The terms and conditions of the agreement are by agreement between an employer and employee but there are a number of matters the law requires the agreement to set out.

An individual employment agreement must include:

The names of the employee and the employer concerned;
The position of the employee;
A description of the work to be performed by the employee;
An indication of where the employee is to perform the work;
What hours the employee will be required to work;
How and what the employee will be paid for the work;
A description of how public holidays are remunerated; and
A plain language explanation for the services available for the resolution of employment relationship problems, including a reference to the 90 days that an employee has to raise a personal grievance.
Despite reports otherwise, an employer CANNOT contract out of any of the minimum entitlements provided by law i.e., if the agreement provides for time and a quarter payment for a public holiday rather than time and a half and the employee signs the agreement, the employee can still claim time and a half for the public holiday worked

Tip: Did you know a 90 day trial period will only be valid if it is agreed to in the employment agreement and signed before the new employee starts?

Penalties

The financial penalties for not complying with employment laws are up to $10,000 for individuals and $20,000 for companies. Can you afford not to get an employment agreement in place?

Short Answer: No.

If you do not have employment agreements in place for all employees, including casual and fixed term employees, feel free to contact someone from our team to assist. Likewise if you have an old agreement template, consider having this updated.

In March, the Government introduced the Health and Safety Reform Bill 192-1 (the Bill). The Bill is based on Australian Model Law and if enacted will replace the Health and Safety in Employment Act 1992 (HSE Act) and will significantly alter the landscape of health and safety related legislation. The Government proposes to pass the Bill before the 2014 General Election with the aim of introducing it in April 2015.

PROPOSED CHANGES

PCBUs
The Bill introduces the concept of a person conducting a business or undertaking (PCBU) which is very broad and has been drafted to capture all modern working relationships. A PCBU will have the primary duty of care for ensuring so far as is reasonably practicable the health and safety of workers engaged in the business or undertaking.

The Bill also sets out a duty for PCBUs who manage or control a workplace to ensure no risks to health and safety of any person in terms of entering and exiting it.

Duty and liability of officers
The proposed new law will create a duty on officers of the PCBU to exercise due diligence to ensure that the PCBU complies with its duties or obligations.

This new duty will apply to company directors, chief executives and managers and will require that they keep up to date with health and safety matters, understand the operational hazards that exist and ensure that there are appropriate resources available.

Offences
Under the proposed new law a tiered penalty regime will be introduced which will increase the level of penalties. This will bring greater clarity to the Courts as to what is an appropriate fine level. The most serious offending carries a fine of $3 million for a body corporate and $600,000 and/or five years imprisonment for a PCBU or officer of a PCBU.

Workers
The Bill sets out a duty for all PCBUs to consult with workers about health and safety. This is not a new duty but because the definition of worker has been widened to include the likes of contractors, subcontractors and their employees it means that consultation with the workers will be wider.

WHAT DOES IT MEAN FOR YOU?
You need to know your rights and obligations and proactively address health and safety to prevent harm in the workplace. If you don’t know the inner workings of the organisation spend time on the ground to improve your understanding.

We recommend ensuring that you have a comprehensive health and safety management system that you review regularly and is put into practice by everyone. Now is a good time to check you have your systems ready to comply with the proposed changes. For example, check you have the following measures in place:

• A Master Hazard Register to identify and control all possible hazards and their risk level.
• Consult with workers when drafting and updating the Register as they are often in the best position to identify the hazards and come up with practical controls.
• A register to record all incidents, near misses and accidents that occur in the workplace.
• Proper training and supervision for all new employees, contractors and sub-contractors.
• Reasonable opportunities for employees to participate effectively in the ongoing improvement of health and safety in their workplace. Do you or your manager have a good understanding of heath and safety and work with staff regularly on how to improve it? If not, you should.

Managing an organisation’s health and safety risk is just as important as managing financial and reputational risk and should receive the same focus. Seek advice if you are unsure – we would more than happy to help.

Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. We recommend that you obtain legal advice specific to your situation before proceeding and would be happy to help in this regard.

ADULT MINIMUM WAGE
The Government announced earlier this week that the adult minimum wage will increase from $13.75 an hour to $14.25 an hour from 1 April this year. This will take the adult minimum wage rates (before tax) to $114.00 for an 8-hour day and $570.00 for a 40-hour week.

It was expected there would be an increase of 25 cents so the 50 cents (3.6 %) rise has exceeded expectations.

Labour Minister Simon Bridges has said that the increase “represents a careful balance between protecting low paid workers and ensuring jobs are not lost.”

Who does the adult wage apply to?
The adult minimum wage applies to all employees aged 16 years and over who are not starting-out workers or trainees, and all employees who are involved in supervising or training other employees.

STARTING-OUT AND TRAINING MINIMUM WAGE
The starting-out and training minimum wage will increase from $11.00 an hour to $11.40 an hour from 1 April this year (80% of the adult minimum wage).

Who does the starting-out and training wage apply to?
The starting-out wage applies to all starting-out workers. They are:

16 and 17 year old employees who haven’t completed six months of continuous employment with their current employer;
18 and 19 year old employees who have been paid a specified social security benefit for six months or more, and who haven’t completed six months continuous employment with any employer since they started being paid a benefit. Once they have completed six months continuous employment with a single employer, they will no longer be a starting-out worker, and must be paid at least the adult minimum wage rate; and
16 to 19 year old employees who are required by their employment agreement to undertake industry training for at least 40 credits a year in order to become qualified.

The training minimum wage applies to all employees aged 20 years or over who are undertaking recognised industry training involving at least 60 credits a year as part of their employment agreement, in order to become qualified.

WE CAN HELP:
If you have any questions regarding the requirements of the upcoming minimum wage increase please do not hesitate to call us on the numbers listed below. We are more than happy to field any questions you may have and help ensure you are fully compliant with your legal obligations as an employer.

Paying properly for public holidays this festive season beats paying the penalties if you don’t.
Many employees watch what they are paid closely and payments for public holidays are no exception. Employees are likely to ask questions if they suspect they’ve been short-changed.
We understand that it can be a challenging time of year for employers, as you try to make sense of the Holidays Act 2003 and understand employee entitlements.

Observing and transferring public holidays this Christmas and New Year
This year Christmas Day and New Year’s Day fall on a Wednesday and Boxing Day and the day after New Year’s Day fall on a Thursday. This means that there are no special rules for any of the holidays this festive season as they will be observed on the days they fall and employees would be paid for those days only if they would otherwise be working days for them.
Since 1 April 2011 employers and employees can agree to transfer the observance of public holidays to another working day if a written agreement identifies which public holiday is being transferred and the new calendar date it is being transferred to. The new date can’t be another public holiday and must be a normal working day for the employee. For example, if an employee normally works Wednesdays, you could agree to transfer Christmas Day to Wednesday 9 January 2014. In any lawful exchange, entitlements transfer fully to the new day. But an employer can’t do it solely to avoid obligations or if it reduces the total number of paid public holidays an employee otherwise gets. If all that swapping seems a bit much – an employer can promulgate a policy prohibiting exchanges.

Payments
Employers may have to pay staff even if they don’t work. Using this festive season as an example, an employee who normally works on a Wednesday will be entitled to their normal pay for Christmas Day even if they don’t work. But if they do work, they get their normal pay, plus half that amount again, for the hours they actually work. They also get an alternative holiday (commonly called a day in lieu) to take later on.
An employee who doesn’t normally work on a Wednesday will only become entitled to be paid if they actually work. Then they get their normal pay, plus half that amount again, for hours they actually work.
Drilling down, normal pay means the employee’s relevant or average daily pay for the public holiday. Relevant daily pay means the amount of pay an employee would have received had they worked. It includes regular payments like commission and overtime rates if the employee would have received them had they worked. So if an employee normally works and is paid for 10 hours on a Wednesday – this is what they should be paid for.
If an employee’s daily pay varies within the pay period relating to the public holiday (or if it’s not possible or practicable to calculate the relevant daily pay), then an employer can use a daily average of the employee’s gross earnings for the previous 52 calendar weeks.

Would or Wouldn’t?
Not sure if your staff would‘ve worked? Try to reach agreement after considering the employment agreement and work patterns. It doesn’t matter whether an employee is casual, fixed term or permanent – always ask whether “but for” the day being a public holiday, the employee would have worked. The answer to this question requires you to look at your specific situation and staff.

Knowledge is Key
Whether you will or won’t work on the public holidays this festive season, make sure you know when and what your employees are entitled to. Some staff won’t be entitled to anything but you need to know why not and answer any questions in a way that you and they understand. Paying properly for public holidays beats paying penalties if you don’t.