Christy Hoebers - Copeland Ashcroft

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill passed its third reading on 7 June 2023, and came into law on 12 June 2023.

This amendment allows an employee to raise a personal grievance for sexual harassment within 12 months of the alleged action occurring, as opposed to the standard 90 day timeframe all other personal grievance claims are confined to.

Employees are still able to alternatively raise a claim for harassment under the Human Rights Act 1993, instead of raising a personal grievance claim.

In light of these changes, employers should update employment agreement templates so that all new agreements issued reflect this extended timeframe for sexual harassment grievances, as distinct from the 90-day timeframe for other grievances. Failure to reflect these timeframes in your employment agreements can result in an employee being allowed to raise a grievance outside of those limitation periods.

Employers should also be recognising the impact of sexual harassment as a health and safety risk in the workplace, and in Victoria, WorkSafe is prosecuting company directors for harm caused by sexual harassment, which is something that could certainly happen here too.

In an April 2023 determination, the Employment Relations Authority ordered quadruple penalties of $14,000 against a construction company for failing to provide a healthy and safe workplace for a female employee who had been sexually harassed.

Message for Employers

For help with this update in your employment agreements, assistance with Bullying, Harassment and Discrimination policies (which all employers should have in place!), identifying and managing health and safety risks arising from these issues or training for your business, please contact our team.

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration 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.

The Employment Relations (Protection for KiwiSaver Members) Amendment Bill 2023 is being considered by Parliament and seeks to restore grounds for personal grievance claims where employees are “adversely affected” in employment by reason of their KiwiSaver or other superannuation membership, which is the same position initially in place when KiwiSaver was introduced.

The up shot of this is that employers could no longer contribute to KiwiSaver under “total remuneration” package terms, because this would be viewed as an “adverse affect” on the relevant employee.

What this means is that employers that contribute to an employee’s KiwiSaver under ‘total remuneration’ would need to stop doing so and start to contribute to an employee’s KiwiSaver scheme on top of their base salary. Employers would also need to review and update their individual employment agreements, for current and new employees, to include the legislative changes. Employers that fail to do so could be open to a personal grievance claim from employees. If passed, changes would also be made to section 101B of the KiwiSaver Act 2006, to the same effect.

Message for Employers

This Bill is currently at the initial stage of being heard by parliament. We will continue to update you as the Bill progress through the parliamentary process.

The Crimes (Theft by Employer) Amendment Bill was drawn from the ballot in April 2023 and if passed into law, would amend the Crimes Act 1961 so as to criminalise employers who intentionally fail to pay their employee’s remuneration.

What this means is employers (either individuals or an entity) who employ another person, owe wages to that person, and intentionally fail to pay them those wages could be convicted of theft.

For individuals, a penalty of up to one year imprisonment, or a maximum fine of $5,000 could be imposed. ‘In any other case’ – such as a business, a fine not exceeding $30,000 could be imposed.

The “intentional” component here is key, and mistaken underpayment where the employer was taking steps to remedy that would not result in conviction.

Message for Employers

We will keep you up to date as this Bill progresses.

A further four Fair Pay Agreements (FPA) have now been approved and the bargaining side formation has commenced. These are:

Hospitality related roles;
Security officers and guards;
Early childhood education; and
Commercial cleaners.

Hospitality related roles

This industry includes accommodation and food services, cafes and restaurants, takeaway food services, pubs, taverns and bars, clubs, casino operation, motion picture exhibition, labour supply services, event catering services.

The roles included are:

café or restaurant manager,
caravan park and camping ground managers
accommodation managers
licensed club manager,
bed and breakfast employee
call or contact centre manager
customer service manager
conference and event organiser
cinema manager
facilities manager
baker
pastrycook
butcher / smallgoods maker
cooks
bartender
barista
café worker
gaming worker
hotel service manager
waiter
bar useful or busser
doorperson or luggage porter
accommodation receptionist
ticket seller
fast food cook
cook or chef’s assistant
kitchenhand
accommodation housekeeper
laundry worker
caretaker
handyperson
car park attendant
ticket collector or usher
delivery driver
cleaner
alarm security or surveillance monitor
security officer
bus driver
beauty therapist
cashier

Security officers and guards

The roles included are:

security guards
crowd controllers
armored car escorts

Early childhood education

This industry includes kindergarten operations, kōhanga reo operations, nursery school operations playcentre operations, preschool operations, kindergartens, kōhanga reo, kindergarten preschool operations, pre-school operations, preschool education services and pre-school centre operations.

Commercial cleaner

This industry includes Commercial cleaners provide cleaning services to offices, residential complexes, hospitals, schools, hotels, motels, churches, aircraft cabins, industrial work areas, industrial machines, construction sites and other commercial premises.

The roles included are:

Commercial cleaner
Commercial housekeeper

Message for employers

If your business is involved in any of the industries above, we recommend getting in contact with our team for advice on what this means for you.

The Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Act 2023 has now passed into law, bringing changes aimed at increasing access to worker engagement, participation and representation. The changes update the regulations and remove previous thresholds that limited this access.

Key points

The changes mean:

If a worker asks for a health and safety representative, the workplace must initiate an election.
If five or more workers, or a health and safety representative ask for a health and safety committee, the workplace must establish one. Failure to meet these requirements may be penalised with a fine.

WorkSafe advises the changes introduced support the idea that workers are best placed to identity how they want to engage with health and safety representation, by removing previous thresholds for this.

Message for Employers

While the change does not make health and safety representatives and committees compulsory, they must now be initiated following requests.

Further updates and guidance on the changes are expected from WorkSafe.

Please get in touch with our team if you have any questions or would like to discuss your obligations here.

New changes regarding occupations on the Green List came into effect on 29 May 2023. Immigration New Zealand (INZ) announced a new the Skilled Migrant Category (SMC) and duration of Accredited Employer work visa (AEWV).

New Occupations on the Green List

Occupations added to Tier 2 Green List (Work to Residence) include:

Bus Driver (731211), truck drivers (7331), Ship’s Master (231231) and Deck Hand (899211
Earthmoving plant operators (7212)
Crane, Hoist or Lifer Operator (712111)

More occupations in Health and Social Services sectors moved to Tier 1 or Tier 2.

We suggest you reach us for more details regarding the occupations and specific requirements of eligibility. We can also do a preliminary assessment of eligibility for you.

New settings of SMC

Besides Green List residence and Highly Paid residence pathways, SMC is still the main residence pathway for the majority of skilled migrants. INZ is introducing a new, simplified six-point system to give more certainty to migrant workers and their families, and applicants must have a job offer or current employment in a role paid at or 1.5 times the median wage depending on the skill levels. They also need at least six points to be eligible, which can be made up from:

3 to 6 points based on either professional registration, qualifications or income. People can choose the skill category that offers the most points based on their circumstances; and
1 point per year of working in New Zealand in a skilled job, up to a maximum of 3 points.

All applicants must also meetthe medical and character requirements for all visa applications. This new setting has no annual cap on the number of eligible applications, meaning all eligible applications will be processed.

If you missed the 2021 Resident Visa applications, the new SMC may be an option. We can preliminarily assess your qualification, work experience, income and skilled work in New Zealand to ensure your eligibility. Otherwise, we can advise your options for residence pathways based on your circumstance.

Changes to AEWV

From November this year, new AEWVs will be granted for five years and existing visa holders can apply for a further visa to get up to five years in total.

AEWV holders who are not clear on a pathway to residence need to leave New Zealand for 12 months (standdown period) before applying for another AEWV. Previously, low-skilled workers were granted two years’ AEWV and a condition of 12-month standdown period. Now, this has expanded to include all other AEWV holders.

INZ has advised it will release more details on this shortly.

Message for Employers

The changes to AEWV holders may impact your mid-skilled and low-skilled migrant workers significantly, and we can discuss their visa options and advise on a plan for a pathway to a residence to support greater certainty over this.

As INZ amends and updates its policies every month, with our advice you can save valuable time to do an assessment and review before applications are submitted to INZ.

If you and your employees have any queries in relation to temporary and/or resident visa applications or have issues of medical and/or character issues, please feel free to contact us.

In December 2020, Zenthe Ltd (Zenthe) engaged a labour for hire company (AWF) to provide workers to work in its workshop.

Zenthe provided training to the AWF worker on the use of its machinery and equipment. In March 2021, the worker suffered crushing injuries while using a hot press machine. The worker required surgical amputation of parts of three fingers.

Zenthe was charged with failing to comply with its duty to ensure, so far as reasonably practicable, the health and safety of workers. In particular it failed to have a competent person review and assess the machine to ensure compliance with safety standards and failed to ensure the machine was adequately safeguarded. It pleaded guilty to these charges.

Zenthe had engaged a health and safety consultant to prepare a health and safety manual for the machine. But, Zenthe had not sought specific advice from the consultant on the guarding machine or advice on risks. The consultant had visited the site once, did not see the machine in operation, and provided Zenthe with a safety manual that was based on another company associated with Zenthe’s directors.

At sentencing Zenthe argued it was entitled to rely on the consultant and since he did not point out the guarding difficulties in relation to the machine and because Zenthe acted on his advice there should be a reduction in the fine imposed.

Worksafe argued that Zenthe should have known the consultant was not an expert in guarding machinery and that it could not ‘dilute its own culpability under the Act’.

While the Court held it did not need to make a final decision on this (based on Zenthe’s inability to meet a fine), it stated that any discount allowed for this factor would have been modest.

Message for Employers

This case sends a strong message that employers need to ensure experts are instructed properly and they cannot veil their culpability by attempting to point out the failures of others. The Courts may not consider this position when issuing a fine.

This Bill passed its third reading and is anticipated to come into law soon.

The primary purpose of the bill is to prevent migrant exploitation and expands Labour Inspector and Immigration New Zealand powers in relation to compliance and enforcement.

The Bill, once enacted, provides that:

Employers will be required to comply with a notice to produce records as soon as is practicable or within 10 working days, and failure to do so could result in a penalty.
Employers can be fined $1,000 for each employee if they are found to be employing workers not entitled to work or working outside the scope of their visa conditions.
Publication of names may occur in respect of immigration offences.

Message for Employers

We will keep you updated with the progress of this Bill.

If you are a visa supporting employer and want to discuss what your obligations are with compliance of existing and proposed legislation, our team can help with advice.

This proposed Bill will allow a spouse or partner caring for a child to split paid parental leave or take leave at the same time, and has had its first reading, The purpose of the Bill is to increase the flexibility of arrangements available to families and will amend some of the provisions of the Parental Leave and Employment Protection Act 1987.

For example:

Mary is entitled to 26 weeks of primary carer leave. She transfers six weeks of entitlement to a parental leave payment to her partner Tom. Tom may take six weeks of primary carer leave.

That 6 weeks may be taken:

(a) for the period that immediately follows Mary’s 20 weeks of primary carer leave; or

(b) for a period that is during Mary’s 20 weeks of primary carer leave (for instance, Tom may choose to take primary carer leave for the first six weeks following the birth of the child, with Mary taking primary carer leave for the two weeks before the birth and
18 weeks following the birth); or

(c) for a period that overlaps with Mary’s 20 weeks of primary carer leave (for instance, Tom may choose to take the first week of primary carer leave during Mary’s last week of primary carer leave.

Message for Employers

We will keep you posted on the Bill’s progress, and employers should be ready to update relevant policies and agreements on parental leave entitlements should it pass.

Case Details

The Employment Court has recently found in Pilgrim v Attorney-General [2023] NZEmpC 105, that six female former residents of the Gloriavale Christian Community were employees not volunteers.

Case Summary

During their time at Gloriavale the plaintiffs carried out work within the community from around the age of six this increased until they were working full time in ‘Teams’ after leaving school at 15.

The purpose of these Teams was to meet the needs of the community working in what was referred to as the women’s realm; the work was structured around four core work types-cooking, cleaning, washing and food preparation.

The Court made it clear that under the Employment Relations Act 2000 (Act), there is no statutory carve out provision from the definition of employee for domestic work. For a worker to be a volunteer under s 6(1)(c) of the Act, they must have no expectation of reward for work performed as a volunteer and must receive no reward for work performed as a volunteer.

In determining that the real nature of the relationship here was one of employment and not a voluntary arrangements, the Court held that:

Each plaintiff began work on the Teams when they were told to do so, and in the way they were directed
A reward for work does not have to be financial remuneration, and here, in exchange for the plaintiffs work they expected to be permitted to remain in the community with their friends and family and receive food, shelter clothing, religious support, guidance and the promise of spiritual redemption
As such there was an expectation and actual reward for work performed and thus this work could not be characterised as that of a volunteer and was an employment relationship
Capacity to pay for the work was not relevant to a finding as to the nature of the relationship

As a result of this decision, the plaintiffs are now able to claim minimum entitlement rights, including sick leave, holidays, rest and meal breaks and minimum wage for work performed.

Message for Employers

This is the latest in a recent line of cases challenging the traditional understanding of what amounts to work, and considering the categorisation of an employment relationship.

Labelling workers volunteers does not prevent a finding that volunteers are actually employees even in circumstances where the type of work and reward is not what would traditionally be contemplated in an employment context.

Failure to correctly classify employees could expose your business to considerable risk. If you use volunteers and would like to make sure these arrangements are fit for purpose, please contact us.