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On 29 May 2018, the Government announced that it had formed a working group with Business New Zealand and the New Zealand Council of Trade Unions to review the Holidays Act 2003 (HA). Recommendations and possible legislative changes are not likely to be announced until 2019, but we’re hopeful the eventual result will be a simpler law!

The working group was set up following requests from both unions and employers to address the complexity of the HA, following many high-profile problems with its calculations, with even NZ Police identifying that their employees had been incorrectly paid leave entitlements. NZ Police has paid $39 million in arrears to current and former staff as a consequence.

Minister for Workplace Relations and Safety Hon Iain Lees- Galloway has said that the working party will focus on ensuring that any new law is straightforward and easy to implement and accommodates a variety of work patterns and pay arrangements.

The working group is expected to consult widely to gain a comprehensive understanding of the issues with the HA as well as working closely with technical experts in this area.

Although it is likely that changes will be made to the HA, the Government has been clear that all employers are still expected to comply with the current legislation, and that enforcement of this law will continue. The Labour Inspectorate is proactive in this respect, and employers are being fined for failures to comply, as we’ve written about here and here

If you have any concerns about HA obligations, please do not hesitate to contact one of our team

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

June 2018

Managing people has become increasingly complex, with employers struggling to keep up to date with the multiple laws they must comply with and the latest best practice in human resource methods. At the same time, employers face greater risks on the people front than ever before. Staff are more aware of their legal rights and regulators like WorkSafe, the Ministry of Business, Innovation and Employment’s Labour Inspectorate, and Immigration New Zealand, are very proactive in investigating employer practices and taking action where these do not comply with the law.

As a minimum, employers must ensure:

All employees have an employment agreement that complies with current law;
Minimum rights for holidays and wages are met, and records kept to demonstrate compliance;
They know how the Health and Safety at Work Act 2015 (HSWA) impacts their business, and have a comprehensive workplace health and safety management plan in place; and
Employees from overseas are not engaged without valid work visas.
Where an employer receives a penalty or similar for a breach of New Zealand employment law, there is an automatic Immigration New Zealand stand down for employers who infringe minimum rights, meaning those employers are banned for various time frames from using migrant workers. For the most serious offences they can be banned from employing people altogether.

Cost is a factor for those who make a mistake during any employment process with an employee. Recent Employment Court and Employment Relations Authority decisions have awarded employees with successful personal grievance claims a lot more compensation for hurt and humiliation. Mid-range awards have recently increased to around $20,000.

Another area of change is the use of laws such as the Privacy Act 1993, and the Human Rights Act 1993. Employees are relying on these more commonly to bring claims to the Human Rights Review Tribunal which has given large awards of up to around $100,000, making this a newly-popular forum for claims.

In welcome news, the Government has announced a review of the Holidays Act 2003, with a report expected mid-2019. At present, claims under the Holidays Act 2003 have a six-year limitation period. The same applies for wage claims. This is a significant liability risk for employers who have not been applying these minimum rights correctly and the Labour Inspectorate has a raft of enforcement tools including the ability to seek significant penalties for these failures.

Against this background, it is more important than ever for employers to seek good advice and professional support in managing people so they can limit the risks and avoid unnecessary costs in resolving problems after they arise.

What does this mean for you?
Aside from the obvious necessity of compliance, there are some real benefits in engagement and productivity to be gained from making people management a positive focus in the business, which ultimately contribute more to the bottom line. Employers can benefit from looking at their “employment infrastructure” regularly to ensure it is fit for purpose and achieving their objectives, by asking, for example:

is documentation up to date for best practice?
are systems in place to ensure compliance requirements are met?
are people inducted appropriately to what the business is seeking to achieve, and how their role contributes to this?
does the reward system match the business strategy and achieve employee buy in to delivering to this?
If you would like to know more about managing employment risks, please contact us.

July 2018

In March 2017 we wrote an article about the proposed Victim’s Protection Bill (Bill), which has now passed its second reading in Parliament. This was a particularly important stage in the process as the Select Committee were unable to agree on whether the bill, as it was initially proposed, should proceed, but after consideration by the Committee of the whole house on 27 June 2018 and passed its third reading on 25 June 2018.

Key changes to the initial Bill include incorporating three proposed changes to the Health and Safety at Work Act 2015:

To included in the definition of “hazard”, a person’s behaviour where it could cause harm, where that behaviour is because a person is inflicting domestic violence or is the victim of domestic violence;
To require PCBUs to have a policy on dealing with domestic violence; and
To require PCBUs to train health and safety representatives to support workers who are victims of domestic violence.
From 1 April 2019, employers will be required to provide 10 days of paid leave a year to the victims of domestic violence or for those caring for children who are victims of domestic violence. These same employees will also be able to request short term variations to their working arrangements of no longer than two months.

Employers will need to ensure decision makers are aware and educated in the changes. Employers will need to review various policies including leave and bullying and harassment policies. Consideration should be given to implementing a domestic violence policy which we recommend includes a requirement for proof of domestic violence and updating of health and safety management plans to include identification of domestic violence as a risk should also be undertaken. Payroll systems will also be another area which will need review to ensure that domestic violence leave is included.

The Human Rights Commission, in conjunction with a number of large employers, has developed a draft domestic violence policy for employers, available here www.businessworkingtoendfamilyviolence.co.nz The website also offers additional educational resources to assist employers.

If you need advice on domestic violence policies and reducing the hazard caused by domestic violence, or with updating other relevant polices please contact us.

July 2018

A recent Employment Relations Authority (Authority) case is a timely reminder of overlapping employment and health and safety obligations.

The requirement to supply Personal Protective Equipment (PPE) is set out in the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 (the regulations). If a workplace has identified that PPE is a means of controlling a particular risk, then it is the employer’s responsibility to provide its employees with PPE.

Naoupu v Wallboard and Insulation Supplies NZ Ltd
Mr Naoupu worked as an insulation installer and was dismissed for failing to wear suitable footwear.

His employer provided him with a high-visibility vest, hard hat, breathing masks and ear plugs but instructed him to purchase a pair of steel capped boots on their account at NZ Safety up to the value of $70 as his boots were worn and no longer safe.

Mr Naoupu did go to NZ Safety in the hope of purchasing new boots, but there were no suitable boots under the $70 price cap and he could not afford to pay the difference.

The employer dismissed Mr Naoupu for knowingly working without adequate PPE on three occasions. Eventually Wallboard and Insulation Supplies dismissed Mr Naoupu.

The dismissal was held to be unjustified. The Authority found that the employer could not apportion all the blame to its employee for failing to wear suitable footwear when the cheapest boots he could purchase were $77.05 and did not meet Mr Naoupu’s needs.

In this case, the employer had a responsibility to supply adequate PPE and should have done more to meet its obligations. There were no boots that could be purchased within the employer’s price range and when it was clear Mr Naoupu had not obtained the gear, they should have gone out and actually supplied it to him.

The remedies awarded to Mr Naoupu were reduced by 20% as his actions as he bore some responsibility for ensuring that the employer was aware of the reason why he was unable to buy the boots.

Learnings
Although health and safety breaches (particularly repeated ones) can amount to serious misconduct warranting summary dismissal, you should always assess whether you have met your legal obligations prior to taking any disciplinary action against an employee. If you have failed to meet your obligations it may be difficult to justify taking disciplinary action against an employee even where their actions are blameworthy.

The regulations specifically refer to providing PPE to employees. This case highlights the importance of ensuring PPE is provided to workers even if that means going out and purchasing it yourself. Even though an incremental allowance in each pay may reimburse an employee for their overall expenditure on PPE, this is unlikely to meet the definition of “provide” after a certain period of time.

The only exception is where an employee genuinely and voluntarily wishes to provide their own PPE. The regulations set out in those circumstances that the employer must take steps to ensure that it is suitable and meets the required standard for the work being performed. At any stage an employee who is supplying their own PPE can provide reasonable notice to their employer that they no longer wish to do so, and the employer’s obligation to provide the PPE kicks back in.

If you would like further information on this article, please contact us

April 2018

The Copeland Ashcroft Law Team recently wrote on our predictions to the post-election changes in employment law. The Employment Relations Amendment Bill (Bill) was introduced to Parliament on 29 January 2018. Although the Members of Parliament are yet to debate and vote on the Bill, we now know more about the immediate changes the coalition Government proposes to make.

The purpose of the Bill is to restore key minimum standards and protections for employees to strike balance in the workplace between employers and employees to ensure productive employment relationships.

Trial Periods
The Bill proposes to limit trial periods to employers with less than 20 employees. This means that if the employer has more than 19 employees on the day they enter into an employment agreement (agreement) with a new employee, then they will not be entitled to include a trial period provision in the agreement.

Larger business who are not able to use trial periods can mitigate their risks with new employees by ensuring sound recruitment processes are in place. These employers will also be able to use probationary periods, however in order to dismiss an employee under a probationary period they will still need to follow a fair process and demonstrate good reasons for the same. Our latest article on getting trial periods right is available here.

Guaranteed Rest Breaks
The Employment Relations Act 2000 (Act) provides, in summary, for reasonable rest and meal breaks (breaks), to give employees an opportunity for rest, refreshment and to attend to personal matters, taking into account the employee’s work period. Breaks must be at times and for durations agreed between the parties, or failing agreement, as determined by the employer.

In 2014 the Act was changed to improve flexibility for parties to an employment relationship, where previously the law on breaks was more prescriptive. The Act also currently provides that an employer can impose reasonable restrictions on an employee’s breaks where necessary, for example, specifying where breaks are to be taken, and if an employee needs to remain aware of or perform some work duties during their breaks.

The Bill seeks to reinstate the Labour Party’s prescriptive minimum standards approach to rest and meal breaks with limited exceptions (set out below). If enacted into law, employers would need to provide the stipulated breaks at times agreed by the parties, or if no agreement could be reached, then the Bill stipulates mandatory times for when the breaks need to be taken.

If the employer is engaged in an “essential service” which is critical to the public interest and if the employer would incur unreasonable costs to replace an employee during breaks with another person of sufficient skill and experience and without compromising public safety, then the parties may agree that any breaks are to be taken in a different manner (including the number and timing of breaks). If the parties cannot agree, then the employer must compensate the employee (i.e. time of work and/or financial compensation).

Unions, Collective Agreements and Bargaining
The Bill proposes to strengthen collective bargaining and union rights to secure better terms and conditions for union members.

If enacted into law:

Unions will again have access, without employer consent, to workplaces;
Union representatives will be allowed paid time off work to perform union roles;
There will be a duty to conclude a collective agreement unless there is a genuine reason based on reasonable grounds not to;
The duty of good faith will require employers and unions to continue to bargain about other matters where the parties have reached a standstill about a matter;
Unions will again have the right to initiate collective bargaining first;
Employers will be unable to opt out of multi-employer collective agreements;
Requiring pay rates to be set out in collective agreements;
As previously, new employees’ terms and conditions will be those of the applicable Collective Agreement for the first 30 days of employment;
There will be a new requirement to provide details about the union, their role and the option to join to new employees;
The employer will need to pass on information to their employees about the unions role and functions at the union’s request unless the information is defamatory or confidential;
Employers will need to share information about a new employee with the union unless the employee objects;
Extend the grounds for discrimination based on union involvement;
Extend the timeframe by six months for which an employee’s union activities may be considered to contribute to an employer’s discriminatory behaviour; and
The employer will no longer be able to deduct pay as a response to partial strikes.
Other Employee Friendly Changes
Other proposed changes include the restoration of reinstatement as the primary remedy for unjustified dismissal claims and the introduction of stronger protections for “vulnerable employees” such as cleaners and food caterers involved in restructurings (so that small to medium employers are no longer exempt from those protections), as well as privacy related changes requiring employers to notify employees of their right to review and correct personal information.

What Does This Mean For You?
Broadly speaking, the changes will require employers to look at bargaining strategies and collective agreement requirements in detail, and to review and revise individual employment agreements to ensure these comply.

The Copeland Ashcroft Law Team will be discussing the implications of these changes in our February/March 2018 free seminar series, details here: https://www.copelandashcroft.co.nz/training-events

If you have any queries about how these changes might affect your business, please don’t hesitate to contact the Copeland Ashcroft Law team.

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.

Don’t forget our free seminars being held in locations over New Zealand in February and March.

“What’s on the horizon for 2018” – click here for more informatin and to register for a seminar in your area.

In 2016, the Government made changes to the Shop Trading Hours Act 1990 (Act) to enable city and district Councils to make decisions on whether shops in their districts could open on Easter Sunday or not.

Many Councils have decided to allow shops in their district to open on Easter Sunday, click on link here to identify all Councils in New Zealand which allow shops to open on Easter Sunday,

What is a Shop?
Section two of the Act defines a shop as a building, place, or part of a building or place, where goods are kept, sold, or offered for sale, by retail; and includes an auction mart, and a barrow, stall, or other subdivision of a market; but does not include—

(a) a private home where the owner or occupier’s effects are being sold (by auction or otherwise);
(b) a building or place where the only business carried on is that of selling by auction agricultural products, pastoral products, and livestock, or any of them; or
(c) a building or place where the only business carried on is that of selling goods to people who are dealers, and buy the goods to sell them again.

Are there any other restrictions to be aware of?
If an employer wants to open their shop on Easter Sunday, or undertake non-trading activities such as restocking shelves or a stock- take then every year they are obliged to give employees at least four weeks notice in writing of this. The notice must also advise employees that they can refuse to work on Easter Sunday.

In 2018, this notice should be provided to employees no later than 4 March 2018.

If a shop employee intends to refuse to work on Easter Sunday, they must give the employer 14 days written notice of this. Employees are not required to provide a reason for their refusal.

Employers cannot force employees to work on Easter Sunday nor treat them adversely because of their refusal to work on Easter Sunday. If they do so, the employee can take out a personal grievance.

You should also be aware that Easter Sunday is not recognised as a public holiday under the Holidays Act 2003, therefore an employee will not be entitled to time and a half and/or an alternative holiday unless specified in the relevant employment agreement.

If you would like to know more about how this might impact your business, please contact us.

It has been a busy start to the year for employment law changes! In addition to the broad changes reported here the Employment Relations (Triangular Employment) Amendment Bill (Bill) has also been introduced to Parliament.

The purpose of this Bill is to ensure that employees employed by one employer, but working under the control and direction of another business or organisation, are not deprived of the right to coverage of a collective agreement, and to ensure that such employees are not subject to a detriment in making a personal grievance claim.

Primary and secondary employer
The Bill talks in terms of “primary employer” and “secondary employer”. A primary employer is an employer who employs a person, and a secondary employer is a person who contracts with the primary employer to use the employee to perform work for them, under their control or direction.

A classic example of a triangular employment relationship as described by the Bill is labour hire arrangements. For example Labour Hire Limited may employ a builder, and then subcontract him out to ABC Builders Limited to perform work for them. In this example, Labour Hire Limited is the primary employer, and ABC Builders Limited is the secondary employer.

Party to the collective agreement
The Bill proposes that the primary employer can be bound by a collective agreement that only the secondary employer is party to, which could occur if:

The secondary employer is a party to a collective agreement covering the work being carried out; and
The employee is a member of the union party to that collective agreement;
The employee is not bound by any other collective agreement to which the primary employer is a party.
Joining secondary employer to the personal grievance
The Bill further proposes that an employee could bring a grievance claim against their secondary employer, if the Authority or Court considers:

The secondary employer’s actions have resulted in or contributed to the grounds of the personal grievance; and
It is just to do so.
If joined to a grievance, the secondary employer becomes jointly liable for any remedies awarded unless the Authority or the Court specifically order an apportionment.

The Bill, if passed, would likely mean significant change for labour hire arrangements. We will keep you posted on its progress through Parliament.

In light of a recent Employment Court judgment, we have (again!) updated this article, which was previously issued in our InTouch newsletter.

Trial periods are available to all employers for new employees for the first 90 days of employment, and are a helpful tool because they allow employers to dismiss without recourse to a personal grievance claim for unjustified dismissal.

However, there are a number of requirements that must be met in order for the trial period to be safely relied upon to dismiss, and the Courts strictly interpret these requirements because they limit employee rights.

Requirements

The employment agreement must include a trial period provision which states:That the employer may dismiss the employee in the first 90 days of employment; and
In that case, there is no entitlement to bring a personal grievance for unjustified dismissal.
The date on which the trial period starts (usually the same as date as the date on which employment commences).
We recommend that a trial period clause also provides for a shorter notice period, and for the employee to be required to take garden leave during the notice period .
Despite earlier decisions to the contrary we now have an Employment Court decision which indicates that payment in lieu of notice is also be an acceptable means of terminating the employment relationship as long as:it is contemplated in the employment agreement;
the employer sets out that notice is given in accordance with the employment agreement; and
the employer uses clear and unambiguous language, explaining how and when employment is to be terminated, when notice is given.
The employee must be a new employee, and must not have done any work for this employer in the past. A person that starts work, even just for five minutes, will not be considered a new employee. Make sure you double check this – it is especially relevant where you are purchasing a business with existing employees when timeframes are often tight and getting employees to sign new agreements is a low priority.
A trial period clause must be:Included in the employee’s written employment agreement; and
Signed by the employee prior to their first day of work (even an hour after starting has been held to be too late!).
Employees must be told of the trial period when an offer, even a verbal offer, is made. It is also a good idea to include a sentence in your offer of employment letter that states that the agreement includes a trial period. When offering an employment agreement, you must also inform the employee that they have the right to seek independent legal advice and give them an opportunity to seek such advice prior to signing the agreement.
Probationary periods
In light of the Employment Court’s recent decision Lewis v Immigration Guru, we recommend that employers don’t use probationary period clauses for new employees, and rely instead on trial period provisions (although employers may wish to include a probation period if the employee is not a new employee and cannot be subject to a trial period).

In that case, the employer had both a probationary period and trial period clause in the employment agreement, which were to operate for the same timeframe. The probationary period clause required the employer to support the employee and address performance issues as and when they arose. The Court held that the employer was bound by those obligations and couldn’t elect to instead rely on the trial period clause to dismiss.

Probationary period clauses don’t provide any of the dismissal protection for employers that trial periods do, as during a probationary period employers are still required to meet all obligations to act fairly and reasonably in taking disciplinary action, including by following fair process. For more information disciplinary process tips, see our article.

Dismissing during a trial period
If you are concerned about an employee’s performance or conduct, and their employment is subject to a trial period, we recommend that you first check that you have adhered to the above requirements. To terminate in reliance on a trial period, you need to prepare a letter for the employee explaining this and giving notice, before the 90 day timeframe has expired. You should give this letter to them at a meeting where you explain the decision.

Although you don’t have to give a reason for dismissing unless you are asked, it is good to be able to point to something if you are. This is because you are still required to be proactive in your communication with the employee, including telling the employee why you are dismissing them if they ask, even if those reasons wouldn’t usually be a justifiable reason for dismissing them without the trial period.

Remember, all other employment obligations apply during the trial period and an employee is not prevented from bringing any other kind of claim, for example, regarding discrimination.

If in doubt, call us for help – the trial period provides a great opportunity for flexibility, but only where used in strict compliance with the legal requirements.

March 2018

In 2017, the Government announced that they were introducing a temporary residency visa for a period of 12 months only. The purpose of introducing this visa was to assist individuals who had settled in South Island long term to apply for residency. The Government has recognised that there are a number of long term workers who currently will not qualify for residency due to the role they perform.

Who qualifies for the visa?
The worker should:

Be 55 years or younger;
Meet standard health and character requirements;
Currently be on an Essential Skills work visa for a job in the South Island;
Have been employed on an Essential Skills work visa in the South Island for five years or more by 22 May 2017 (Some North Island experience may be taken into account though for this five year qualifying period); and
Work for an employer who does not have a significant adverse employment record.
This visa is a two stage process. Initially, the worker will need to apply for a South Island Contribution Work Visa. Once they have been granted this visa, they will need to work for another two years before they will be able to apply for residency. A worker’s partner and dependent children will also be able to apply for residency.

Applications for this visa will close on 23 May 2018 and no further applications for this visa will be accepted after this time.

If you would like to know more about South Island Contribution Visa or require assistance to apply for this visa before May 2018, please contact us.

March 2018