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The team at Copeland Ashcroft Law wish you a safe and happy Christmas and New Year and would like to thank you for your support during 2017.

We look forward to seeing you next year.

From 1pm, 22 December 2017 until 15 January 2018, our offices will be closed.

For urgent assistance over the holidays, please call:

Kate Ashcroft, between 27 – 29 December 2018 +64 21 548 856

Myriam Mitchell, between 3 – 5 January 2018 +64 21 405 097

Janet Copeland, between 8 – 12 January 2018 +64 27 444 0771

The Copeland Ashcroft Law Team recently presented a seminar roadshow where we discussed some of our top post-election employment law predictions.

Our predictions for change
With a new coalition government in charge, we anticipate some significant employment law changes on the horizon for 2018, on the back of the Labour Party (Labour), Green Party of Aotearoa New Zealand (Greens) and New Zealand First’s (NZF) campaign policies.

Based on the policies set out below, we can predict with certainty that the minimum wage will rise, that it will become more difficult for employers to hire migrant workers, and that employment laws will change to include further protections for employees.

At this stage it isn’t clear which specific policies will be put into motion, but before any legislative changes are made, Labour will require the support of both the Greens and NZF for opposed changes.

Policy overview
Unsurprisingly, all three parties support an increase in the minimum wage. Labour wants the minimum rate to rise from $15.75 to $16.50 per hour, while the Greens have campaigned for an increase to $17.50 and NZF to $20 per hour.

All three parties are also seeking to shake up New Zealand’s immigration laws to keep jobs open for “kiwis” and reduce the number of immigrants working in New Zealand. Labour wants to:

Ensure that employers make genuine attempts to recruit a New Zealander before hiring a foreign worker;
Reduce the number of Student Work Visas;
Deny the right to foreign students to work and study unless approved as part of their course;
Restrict work visas to foreign students who have obtained a degree;
Restrict skilled migrant workers to the region which their visa was issued;
Create a new highly skilled Visa;
Create a KiwiBuild Visa for residential construction firms which train a local when they hire a foreign employee.
Labour has also said that it wants to:

Pay core public sector service employees the Living Wage (currently calculated at $20.20);
Replace the trial period framework with a “fairer system”, using a referee service to determine whether an employee has been dismissed unjustifiably;
Introduce Fair Pay Agreements setting industry wide employment standards and minimum conditions;
Double the number of Labour Inspectors to enforce minimum employment standards;
Implement the Joint Working Group’s recommended changes per its report on Pay Equity;
Extend paid parental leave from 18 to 26 weeks;
Restore reinstatement as the primary remedy for unjustified dismissal claims;
Restore regulated rest and meal breaks – see our article on meal and rest breaks;
Improve redundancy protections;
Ensure that our employment laws apply to workers working for foreign businesses;
Ensure that State Agencies (i.e. the Ministry of Transport, Inland Revenue Department etc.) only contract with employers who adhere to employment law requirements;
Increase protections for independent contractors;
Ensure people working more than 40 hours per week are adequately remunerated;
Improve job security for casual, seasonal and contracted workers; and
Create strong union protections and benefits by:Enabling unions to initiate collective bargaining before employers;
Restoring duty to conclude a collective agreement unless there is a genuine reason not to;
Requiring employees to be employed for their first 30 days on the same terms and conditions as an existing collective agreement;
Preventing employers from deducting wages for partial strikes;
Enabling film and television workers to bargain collectively.
The Greens want to:

Ensure better access to information and increased workplace access to subsidised childcare;
Ensure that employees, employers and unions are all involved in workplace decision, encouraging multi-party collective bargaining and improving employees’ union representation and participation;
Review the Employment Relations Act and address the inequality in power between employers and employees by;Employee protection and payment of the Living Wage;
Setting the minimum wage rate at not less than 66% of the average wage and abolishing youth/training rates;
Improving protections for casual, seasonal, fixed term and temporary workers;
Requiring employers to consider flexible working arrangements requests from parents with young children; and
Implementing international standards on the right to strike, worker accident compensation, pay equity and breast feeding breaks.
Preventing “freeloading” by non-union employees;
Ensuring workplaces are safe and free from discrimination by:Creating stronger laws in respect of hazardous substances, harassment, occupational cancer, pregnancy, working alone and stress; and
Requiring a portion of fines payable as a result of health and safety breaches to be paid to employees who were injured by the breach.
Review the State Sector Act and Public Finance Act to reduce competition and promote collaboration.
NZF wants to:

Remove secondary tax;
Remove the “starting out wage;
Set redundancy notice periods based on twice the normal contractual notice period up to a maximum of 13 weeks;
Ensure wages have equal priority with Secured Creditors under the Companies Act;
Increase “paid maternity leave” to 26 weeks;
Create “paid parental leave” of two weeks, rising to four weeks;
Review and create better protections for employees engaged in short term employment;
Train New Zealanders in skill shortage areas;
Put New Zealander’s first for jobs by “sensible immigration policies”;
Pay the Job Seekers Benefit to approved employers when taking on an apprentice;
Create paid internship programmes for work experience opportunities;
Introduce literacy and numeracy skills package for employees;
Offer trade training for students “not suited to conventional education”;
Create workforce planning, career advice and competitive course entry for post-secondary education;
Require transparency for public service salaries outside of bands; and
Amend the Health and Safety at Work Act 2015 to “remove bureaucratic excesses.”
Watch this space

We’ll keep you posted on any changes, but in the meantime, if you have any queries about how the change in government 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.

October 2017

The media has been in a frenzy after a New York Times investigation uncovered multiple allegations of rampant sexual harassment over decades by Director and Co-founder of The Weinstein Company, Harvey Weinstein. Mr Weinstein was fired by the board at The Weinstein Company and new allegations continue to come to light. The Weinstein Company have purportedly known of many of these allegations, yet have only taken action now that they have been made public.

So what is sexual harassment, how do employers deal with allegations of sexual harassment and what are the risks if you don’t deal with them appropriately?

The law
The Human Rights Act 1993 (HRA) defines sexual harassment as unwelcome or offensive sexual behaviour that is repeated or significant enough to have a harmful effect on the victim. Examples of sexual harassment include:

Being shown sexually offensive pictures at work;
Unwelcome sexual touching or advances; and
Sexual remarks in the workplace.
Additionally, the Employment Relations Act 2000 (ERA) defines sexual harassment as language, visual material or physical behaviour of a sexual nature which is unwelcome or offensive to an employee, and which is either repeated or so significant that it has a detrimental effect on the employee’s employment, job performance or job satisfaction. Further, if a person directly or indirectly asks an employee for sexual intercourse, sexual contact, or another form of sexual activity and their request contains an implied promise of preferential or detrimental treatment, or an implied or overt threat about their present or future employment status.

The ERA states employers must investigate allegations of sexual harassment and where the allegation is substantiated they must take whatever steps to prevent any repetition of the behaviour or request that formed the basis of the allegation.

Under the Health & Safety at Work Act 2015 (HSWA) employers have an obligation to protect employees and others against harm to their health, safety, and welfare by eliminating or minimising risks arising from work. The HSWA defines hazard as “including a person’s behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a person’s behaviour)”. This means employers also have an obligation under the HSWA to manage the risks relating to sexual harassment within the workplace.

Practical risk management
Having a policy defining and setting out steps to address harassment will assist employers to address the issue, as an instrumental document in creating a “harassment free” culture, where workers are clear about how to raise complaints, and where these are taken seriously.

Where a harassment complaint is made, employers must act swiftly to investigate, including by advising both parties of the support available to them during the investigation. Depending on the circumstances, employers may consider engaging an external investigator to assist with this.

Where claims are not investigated, or where they are not investigated adequately, employees have the option of making claims in either the Employment Relations Authority (Authority) or the Human Rights Review Tribunal (HRRT). Where reasonably practicable steps have not been taken by the employer to manage the risk of harm in respect of the behaviour by the employee, there is also a risk of charges under the HSWA.

Our team can assist with advice regarding harassment policies, investigations, and training for managers in implementing these.

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.

November 2017

Tis the season for holiday pay queries, and we cover tips on public holiday entitlements here.

Cases on holiday pay are increasingly common, with the Labour Inspectorate proactively investigating these and other minimum entitlements and seeking penalties for employers who don’t comply.

It is not a safe option for employers to pay employee holiday pay “as you go” (PAYG), because the employee wants the extra cash in hand. A recent Employment Relations Authority determination in Cross v D Bell Distributors serves as a reminder that holiday pay can only be paid as you go in certain circumstances.

So when can you pay holiday pay with the employees pay?
The Holidays Act 2003 (HA) only allows PAYG holiday pay where the employee is employed on a fixed-term agreement of less than 12 months or where they work for you on a casual basis that is so intermittent or irregular that it is impracticable to provide them with four weeks’ annual leave, and:

PAYG is specified in the employment agreement; and
Annual holidays is paid at 8% of gross earnings; and
Payment is an identifiable component of pay – eg separately shown on any payslip.
In Cross, the Authority determined that where a regular pattern of work can be established, it is less likely it will be impracticable to provide employees with annual holidays. Factors that count against work being intermittent or irregular work, include where the employee is rostered on regular work, or where they can show they have worked regularly and consistently.

Despite having had a PAYG arrangement with the employee, in Cross, the employer was ordered to pay the holiday pay again, and additionally was ordered to pay a penalty, because the arrangement did not meet the strict HA requirements.

For advice on paying for holidays, please contact us.

November 2017

The Copeland Ashcroft Law Team recently presented a seminar around the country on “Achieving Peak performance in the workplace”.

Key take-away points are summarised below.

Setting your employees up for success
Employers invest significant resources to hiring, and to ensure new employees are successful, clarity about performance goals and expectations is key. Setting expectations through appropriate key performance indicators that are SMART – specific, measurable, attainable, realistic and timely – creates the foundation for achievement. Those expectations must then of course be communicated to the employee, and performance regularly reviewed against them, both informally in ongoing communication between manager and worker, and formally through a performance review framework.

Reviews create a two-way opportunity for feedback, enabling both employer and employee to identify strengths and weaknesses, in the person’s performance, the design of the role and the broader organisational structure. They also allow any issues to be identified and addressed early, which is an important practical risk management tool. Often performance issues come up where there is a lack of clarity in expectations, or where appropriate training and support has not been provided.

However, there will be times when a manager identifies issues with an employee’s performance that has not been rectified through additional coaching, training and support. Should this situation arise, employers need to apply the correct process to address these.

Poor performance or misconduct?
The starting point is categorising the issue correctly, making the distinction between poor performance or misconduct/serious misconduct. Questions which assist in deciding which is appropriate include:

Is the issue to do with how the employee performs their work (likely to be a performance issue), or is it about how they behave at work (likely to be misconduct)?
Was the behaviour deliberate (likely to be misconduct) or unintentional (likely to be a performance issue)?
Has a policy, code of conduct, or agreement clause been breached (likely to be misconduct)?
A performance improvement process has three main steps:

Coaching – this is the first step in any performance improvement process. Initial coaching discussions are usually on an informal basis and involve raising the issue with the employee as early as possible to ensure they know what is expected and any problems they are having with this can be identified.

Performance Improvement Plan – this stage typically involves meeting with the employee to discuss the current gaps in performance, outlining where performance needs to improve to, through a formal plan which sets clear goals to be achieved, the timeframe in which to achieve them and how improvement will be measured. Any additional support and training necessary should be identified and provided to assist that improvement. Performance is then monitored and formally reviewed against the plan after a reasonable timeframe, and generally only if improvement is not forthcoming after this review timeframe can an employer consider disciplinary action.

Disciplinary Action – for continued poor performance not remedied by the first two steps, disciplinary action may result. Generally, a first warning is issued and then a further review period is followed per 2 above, with a second warning and further review period through to dismissal on notice if sufficient improvement is not achieved. Dismissal is only justifiable in that case where “remedial options” (including training, counselling and redeployment to another role) have been considered and exhausted.
Strategy is crucial to a successful process
Performance management processes by their nature are time consuming for the manager, and often stressful for the employee, who is under pressure to improve or face losing their job. They also often create disturbance in the team the employee works within, due to frustration with the poor performer. Taking advice on a practical and strategic approach to the concerns is recommended, as the best way to ensure the outcome that you achieve reflects value for the investment of your resources.

Should you need any tips for how to manage your employee’s performance, please contact our team.

November 2017

The Parental Leave and Employment Protection Amendment Bill (Bill) was introduced to Parliament by Workplace Relations and Safety Minister Iain Lees-Galloway on 8 November 2017. Aligned with the Labour Party’s (Labour) pre-election policies, the Bill proposes to extend protections for families by increasing paid parental leave entitlements to 22 weeks from 1 July 2018, and to 26 weeks from 1 July 2020.

Labour also proposes to enable female employees to take at least 20 weeks of their primary carer leave after the expected date of delivery.

Current law
The Parental Leave and Employment Protection Act 1987 (the Act) sets out minimum entitlements for employees whilst pregnant or taking parental leave. Currently, employees can receive parental leave payments for up to 18 weeks on the birth or adoption of a child, and may share their leave with their partners.

Labour’s rationale for this change is that New Zealand parents’ entitlements to paid parental leave is one of the lowest in the OECD. The last increase to parental leave was in April 2016 when parental leave was increased from 16 to 18 weeks.

After taking urgency on a 60 to 55 vote, Parliament has given a second reading to the Bill which now needs to go through its third reading prior to becoming law. The chance of the Bill passing into law is high given the National Party’s indication that it would also extend paid parental leave.

What does this mean for you?
Labour estimates that the proposed changes will come at a net cost of $325 million. These costs are fully tax payer funded. The only costs to employers are those associated with finding sufficient cover for an employee’s absence from work while they are on parental leave. The changes do not affect the entitlement to extended leave of up to a maximum of 52 weeks (depending on length of employment).

Labour has also indicated that it intends to consider broader changes to make parental leave more flexible, including by allowing both parents to use parental leave at the same time. This is likely to be proposed in broader legislative changes next year – we’ll keep you posted as more information comes to light on that front.

Questions commonly arise in relation to parental leave, including regarding notice requirements, entitlements, and how best to structure cover for the period of leave, as well as what the options are for returning to work with reduced hours. If you would like advice in respect of parental leave issues, please contact us.

November 2017

The law regarding what constitutes work continues to develop, with a recent Employment Court decision confirming that being “on-call” constitutes “work”, and payment for on call periods should be made at no less than minimum wage. The case involved South Canterbury District Health Board’s (DHB) six anaesthetic technicians (AT) who, when on-call, were required to report to work within 10 minutes and stayed at accommodation close to the hospital to ensure they were able to do this.

The key factors the Court considered, and which will be relevant for other employers with on call workers in determining whether minimum wage must be paid, were:

The constraints placed on the freedom the employee would otherwise have to do as they please;
The nature and extent of the responsibilities placed on the employee; and
The benefit to the employer of having the employee perform the role.
The result of this decision was that the DHB has to pay ATs no less than the minimum wage rate for every hour they are on-call.

What does this mean for you?
The greater the constraints on an employee’s freedom while on call, and the greater the benefit to the employer of having the employee perform the on call work, the more likely it is that their performance of the on call period would be considered “work”. The responsibilities they perform while on call are also relevant. If an on call period is considered work, payment of at least minimum wage must be made for each hour.

It remains to be seen whether the decision will be challenged, and we will keep you updated if so.

If you are concerned about the impact of this decision on your employees who perform on call duties, our team of specialists can offer guidance.

November 2017

Copeland Ashcroft Law are delighted to introduce Myriam Mitchell as our new senior associate to the Hawkes Bay Copeland Ashcroft Law office

Mrs Mitchell has recently relocated to the sunny Hawke’s Bay from Auckland, with her husband and son. She specialises in employment and health and safety law and also has a broader background in insurance and dispute resolution.

“Myriam brings a wealth of complementary experience to our team. We’re excited to have her on board to service our growing client base and to lead our Hawke’s Bay office” said Kate Ashcroft, Principal of Copeland Ashcroft Law.

Mrs Mitchell is based in the Hastings office and also works across the country to support clients. Myriam brings considerable experience ranging from employment cases, assisting clients in relation to health and safety prosecutions and sentencings to High Court trials involving multiple parties.

Mrs Mitchell said she made the move because it offered the best of both worlds.

“I am excited about what the region has to offer to businesses and the expansion that is occurring here. I can also have a wonderful lifestyle with my young family and spend more time in the out doors; as well as joining a leading law firm that is passionate about its clients and relationships and providing the best advice.”

Acting for employers across a range of industries; Myriam gives strategic, compliance and best practice advice on non-contentious matters as well as providing representation in disputes. She has gained broad advocacy and negotiation skills and has appeared in numerous mediations, judicial settlement conferences and hearings, guiding many clients to a negotiated settlement. “She is passionate about getting straight to the issue and gaining an early understanding of a client’s requirements, focusing on achieving the best possible results for her clients.”, says Kate.

For all your employment and health and safety questions contact Myriam.

Can you dismiss an employee for lying during a disciplinary investigation?

The recent Court of Appeal decision, George v Auckland Council [2014] NZCA 209 confirmed that where an employee deliberately lies during a disciplinary investigation into misconduct, further allegations of untruthfulness can be raised as serious misconduct and taken into account to justify dismissal.
FACTS OF THE CASE

It was alleged that Ms George, who was employed in a senior position at the Auckland District Council, breached the employer’s recruitment policy when she recruited a casual employee without the requisite authorisation.

A disciplinary investigation was conducted into the apparent breach of the recruitment policy and Ms George gave explanations that conflicted with statements made by other staff. The employer became concerned about the truthfulness of Ms George’s explanations and so raised those concerns with her. She was then provided with a further opportunity to comment on both the alleged breach of the recruitment policy and the alleged untruthfulness.

The original allegation was proven but not at a level that would justify dismissal. However, the employer concluded that the allegations of untruthfulness were proven and given the serious breach of trust and confidence, that dismissal was the appropriate action.
THE DECISION

The Employment Court found that Ms George’s former employer had followed a fair process, the allegations were raised with Ms George in sufficient detail and she was given a reasonable opportunity to respond. The Court stated that provided a fair process is followed there is no need for the employer to commence a fresh disciplinary process. Ms George’s dismissal was held to be justified.
WHAT DOES THIS MEAN FOR YOU AS AN EMPLOYER?

An employer can not investigate one allegation of misconduct and then dismiss an employee on a different allegation if it has not been investigated.

Suspect an employee is lying during a disciplinary investigation? Make sure you follow a fair and full process by providing the employee with adequate details of the alleged untruth and an opportunity to respond. The Court has emphasised that mere differences in recollection and inconsistencies are not in themselves enough to support a finding that an employee has lied. There must be proof of a deliberate untruth on the employee’s part.

If you suspect an employee is lying during a disciplinary investigation process and you are not sure how to approach it – please contact a member of the team, we would be happy to help.

On 26 July 2017 the Employment (Pay Equity and Equal Pay) Bill (Bill) was introduced into Parliament by Workplace Relations and Safety Minister Michael Woodhouse.

If passed, the Bill will repeal and replace the Equal Pay Act 1972 as well as the Government Service Equal Pay Act 1960 and will also amend the Employment Relations Act 2000.

The Bill’s introduction follows on from the landmark $2 billion pay equity settlement which resulted from the Court of Appeal’s consideration of the Equal Pay Act 1972 in TerraNova v Service and Food Workers Union. The settlement saw 55,000 aged care workers receive a substantial increase in pay. The new pay structure was implemented on 1 July 2017 (you can read more about the settlement here).

What you need to know:
Minister Woodhouse says that the Bill “provides a practical and fair process for employees to follow if they feel they are not being paid what their job is worth.”

The purpose of the Bill, according to its explanatory note, is to “eliminate and prevent discrimination, on the basis of sex, in the remuneration and other terms and conditions of employment, and in doing so, promote enduring settlement of claims relating to sex discrimination on pay equity grounds.”

The Bill:

prohibits employers from discriminating, on the basis of sex, in remuneration and other terms and conditions;
enables employees to make claims relating to sex discrimination in employment;
distinguishes between three types of claims (equal pay, unlawful discrimination on matters other than remuneration, and pay equity);
sets out the processes for resolving the different types of claims; and
re-enacts, in an up-to-date and accessible form, the relevant provisions of the Equal Pay Act 1972.
Minister Woodhouse has also said that the Bill would make it easier for employees to file pay equity claims directly with their employer, rather than having to go through the Courts.

Under the Bill, a pay equity claim must have merit, on the basis that it “relates to work predominantly performed by women and there are reasonable grounds to believe that the work has been historically undervalued and continues to be undervalued.” If a claim has merit, the parties must enter into a bargaining process to resolve it.

Where to from here:
The Bill has passed its first reading and is currently at Select Committee stage. The Bill will be particularly relevant for employers in workforces where employees are traditionally female dominated and where the average rate of pay is low, such as the early child care sector.

If you would like to discuss what this could mean for your workplace, or if you are an employee who would like to discuss raising a pay equity claim, please don’t hesitate to contact us.

August 2017