Harassment, sexual harassment and bullying are all workplace issues which give rise to risks that must be managed in respect of the Health and Safety at Work Act 2015, as well as obligations and potential claims under the Employment Relations Act 2000 and Human Rights Act 1993.

Since our article earlier this year on the topic, here, many more prominent businesses (including law firms!) have been in the media spotlight in relation to sexual harassment and their failures around workplace culture.  We are now seeing more complaints relating to harassment and bullying arising given the current climate and growing awareness around these issues, and employers are well advised to recognise their risks in this respect and have clear processes in place to handle them.  This includes creating a culture that identifies appropriate behaviour and values people being able to speak up easily, with processes that deliver speedy resolution by investigation and action on allegations.

WorkSafe has recently published a new sexual harassment toolkit for workplaces, which covers, from a health and safety risk management perspective:

All complaints about sexual harassment, harassment and bullying should be taken seriously and addressed, swiftly.  While the toolkit provides some guidelines around this, employers need to ensure they have appropriate policy documentation in place which aligns with the specific legal definitions of each of these issues, and sets out the processes by which complaints can be raised, as specific for their business.

Given the multiple issues and often competing obligations to those involved in a complaint scenario (for example, where an employee complains against another employee, and the employer has to balance duties of fairness to each), seeking advice early in the piece is recommended so that a sound plan for action can be developed with appropriate support to implement this.

If you need advice on creating and/or implementing sexual harassment policies, or addressing complaints, please contact us.

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 2018

In our recent seminar series, we discussed drug and alcohol testing.  This article outlines things to consider in deciding whether a testing regime is right for your workplace.

When creating an effective drug and alcohol policy, a raft of legislation must be considered to limit the impact on individual rights and freedoms so far as possible in relation to testing for drug and alcohol.  A clear drug and alcohol policy is crucial, to ensure it is enforceable, and testing must be carried out strictly in line with the policy.

Before implementing a policy, employers need to consider:

Purpose of testing

Why do you need to test?  The specific risks in your specific workplace will determine whether you should conduct testing at all, and inform the types of testing.

Type of testing

Types of testing include pre-employment, reasonable cause, random, post-incident/accident and follow up.  Whether all (or any!) of these is necessary will depend on the type of work you do, as a starting point, and the risks you’re looking to manage.

Who will conduct testing

It is important to use qualified testers, and to consider the associated ongoing cost and administration of testing before committing to and notifying your employees that you will be undertaking a testing programme.

Employee consent?

While agreement to introducing a policy is not necessarily crucial, depending on your employment terms, consultation with employees/relevant unions is necessary  in implementing any new policy.  Employee consent to each test is also required, and the policy needs to address what happens if a test is refused.

Employee privacy

Ensuring the privacy of employee information collected is important and should be addressed in the policy.

Rehabilitation?

Will you support rehabilitation, recognising  that drug and alcohol addiction is  treatable?  Retaining discretion around this is recommended.

Fixed Price Offer – Drug & Alcohol Policy

Until 30 November 2018, we are offering a fixed price on reviewing your current drug and alcohol policy for $400 (plus GST and disbursements), or for a new policy and advice for $800 (plus GST and disbursements) which is a significant reduction in the cost. Please see the attached offer to find out more or alternatively please contact us by telephone on 07 577 8662 or email admin@copelandashcroft.co.nz.

For advice on creating and/or implementing drug and alcohol policies and managing the risks around hazards caused by drugs and alcohol in your workplace, please contact us.

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 2018

At this time of year, many employers are looking at celebrating the holiday season and rewarding employees with a Christmas party, which for many is a long held tradition and a great way for teams to build positive relationships.  Given the potential for over-indulgence to lead to a raft of problems, especially in the current health and safety conscious and #metoo era, some employers are understandably apprehensive about what this means for their end of year festivities, and what their responsibilities are.

Playing it safe

The good news is, Christmas parties haven’t been outlawed!  However, employers are advised to practice host responsibility, and think about the following, to help facilitate the festive season without destroying the fun:

See our article for more practical advice on managing health and safety obligations at work parties.

Dealing with inappropriate behaviour

Despite your best efforts, sometimes an issue will arise from the heady combination of colleagues, drinks and a party. Investigating, including by a disciplinary process where appropriate, is an effective way to manage inappropriate behaviour by finding out what happened and addressing it.  See our article for practical advice on conducting a disciplinary process.

Whatever the issue and desired outcome, our team is here to support and advise you, including with on-call availability over the holiday period.

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 2018

In September 2018 we wrote about the proposed Employment Relations Act Amendment Bill.  You can read more about the Bill here.  Following the Select Committee second reading this week, small amendments have been made to the Bill, including:

The Bill is expected to pass before Christmas and come into force on 6 May 2019.  We will continue to monitor its progress and update you on any further changes, and will be discussing what the changes mean for employers at seminars in early 2019.

In the meantime, if you have any concerns or queries about these upcoming changes, please contact 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.

November 2018

The Regulatory Systems (Workforce) Amendment Bill was introduced to Parliament on 12 December 2018 as one of three omnibus bills to contain amendments to legislation administered by the Ministry of Business, Innovation and Employment.

This Bill aims to improve regulatory systems and is a timely follow-on of the Employment Relations Amendment Bill being passed, which you can read more about here.

The relevant changes are:

Holidays Act 2003

Employment Relations Act 2000

Remuneration Authority Act 1977

Parental Leave and Employment Protection Act 1987

If you would like to discuss any of the recent changes or proposed regulatory changes to the above legislation, please contact 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.

 

As we come to the end of the year, some employers may pay a bonus in recognition of past performance or a financial incentive to perform in the coming year.  Incentive bonus payment schemes are valuable tools for employers both to drive and reward performance, but advice on working out the structure of the scheme to calculate what the actual cost is likely to be is key to avoid surprises in terms of whether the payment has to be accounted for in calculating holiday pay.  The Holidays Act 2003 governs entitlement to payment for holidays, providing that holiday pay is calculated on the basis of an employee’s gross earnings, which includes incentive payments except where these are discretionary.

However, what is truly discretionary is not always clear and will depend on how the bonus or incentive terms are drafted.  Being clear about the discretion in the employment agreement is key to avoiding surprises.  For example, if an employment agreement says that where an employee performs to a certain standard they will be paid a bonus, yet there is discretion as to what amount, this is likely to attract holiday pay as it will be defined as gross earnings. However, if making a bonus payment at all is discretionary, that is likely to be excluded from the definition.

If an employer does not pay the employee their correct holiday pay entitlement, there is a six year limitation period for back pay, as well as potential penalties.

Our specialist team can provide advice on how to structure bonus or incentive schemes in the most cost effective way, as well as on the application of the law to schemes already in place.

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.

Paying for public holidays

Public holidays are in addition to annual holidays and there is no minimum period of time an employee has to be employed to get public holidays benefits.  The Christmas period can be a challenging time of year for employers trying to manage the minefield that is the Holidays Act 2003 (Act), but it pays to get it right. Where an employer gets it wrong, there is risk of a penalty award and backpay for up to six years.

Who is entitled to payment for public holidays?

An employee is entitled to be paid for a public holiday even if they don’t work that day, if the day on which the public holidays falls would “otherwise be a working day” for them.

If employees work on a public holiday they are entitled to be paid their normal pay (relevant or average daily pay), plus half that amount again for hours actually worked.  If the public holiday falls on a day an employee would otherwise have worked, they will also be entitled to an alternative holiday.

In summary, alternative holidays can either be used, by agreement or at the employer’s direction, or may be cashed out by agreement, when 12 months has passed since accrual.

Transfer of public holidays

Some public holidays that fall at the weekend (Christmas day, Boxing day, New Year’s day, 2 January) are automatically transferred to the Monday (if the day falls on Saturday) or Tuesday (if the day falls on Sunday) immediately following the weekend, where the weekend day is not one that an employee would otherwise have worked.  Waitangi day and ANZAC day automatically transfer to the Monday if the day falls on either a Saturday or Sunday.  If the employee would otherwise have worked on the weekend day day the public holiday falls  there is no transfer.  The intention is that everyone gets the benefit of the public holiday in some form.

Christmas Day 2016 is a good example of how this works in practice, as it  fell on a Sunday.  For employees who work Sundays, that day was the public holiday.  For everyone who doesn’t work Sundays, the public holiday was recognised on the following Tuesday.  The holiday is only recognised once – employees who work both Sundays and Tuesdays can’t “double dip” and claim two public holidays.

Public holidays can also be transferred to another day by agreement in writing.  In that case, the agreement must specify which public holiday is being transferred and the date it is being transferred to.  The new date can’t be another public holiday and must be a day the employee would otherwise have worked.

Determining whether a day would “otherwise be working day”

Not sure if your employee would have otherwise been working?  The Act lists factors to consider including, what the employment agreement states, what the work patterns are, any rosters or systems in place, whether the employee works only when work is available, and the reasonable expectations of the parties.

If you would like advice regarding public holidays, please contact 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.

The Employment Relations Amendment Bill 2018 has passed its third reading in Parliament.  Changes come into effect in two stages, from 11 December 2018 (when Royal Assent was given) and on 6 May 2019.  We summarise these below.

Changes in effect now:

Changes coming into effect on 6 May 2019:

Need more information about how this applies to you?  The Copeland Ashcroft Law team will be delivering free seminars nationwide on the Employment Relations Act amendments in March 2019, or you can contact us here for advice.

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.

Effective from 1 April 2019, the minimum wage will rise from $16.50 an hour to $17.70. The starting-out and training wages will also increase from $13.20 to $14.16 per hour.  The next planned increase will be to $18.90 an hour in April 2020 and $20 in April 2021, as part of the Labour and New Zealand First coalition agreement.

What does this mean for employers?
Aside from the immediate additional cost to employers, the rise in wages adds pressure to increase all wages relative to the minimum wage.  Wage levels are well and truly at the fore at present, especially with the flow on effects of recent pay equity changes.  If you have any questions regarding the requirements of the upcoming minimum wage increase, or remuneration strategy more broadly, please do not hesitate to contact our 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.

A recent Employment Relations Authority (ERA) decision raised interesting questions as to whether secret recordings which have been obtained in breach of good faith employment obligations could justify a dismissal.

As a general rule, secret recordings are only allowed where made by a party to the conversation. However, in the employment context, issues arise as to whether the act of secretly recording is a potential breach of good faith and the implied duty of trust and confidence between and employer and employee, and questions have also arisen as to their admissibility as evidence in disputes.

Case summary: Nicol v Canterbury Concrete Cutting NZ Ltd [2018] NZERA Christchurch 180
In this case, Canterbury Concrete Cutting NZ Ltd held a disciplinary meeting with an employee who had allegedly been badmouthing the company. Without seeking permission, the employee recorded this disciplinary meeting. When the company became aware of the recording, the employee was dismissed for breach of good faith under his employment agreement, along with a lack of remorse for the recording. The employee claimed he was unjustifiably dismissed, pointing out that the company had not explained how the secret recording was a breach of good faith or trust and confidence through its process.

The ERA found there were procedural flaws in the company’s decision to dismiss the employee, because the company failed to:

The ERA found the company’s process was procedurally unfair and the recording of the meeting was not conduct serious enough to justify dismissal, so the employee’s claim succeeded, but it held that the employee had breached his duty of good faith in making the secret recording.

The company was ordered to pay $27,000 for lost wages and compensation. However, the employee was also ordered to pay a $2,000 penalty to the Crown for his breach of good faith.

Message for Employers
Employers should be aware that employees are more frequently recording meetings, especially given the ease with which this can be done on a phone or small concealable recording device.  No recording of a conversation should be made without both parties being aware of this.  Employers seeking to discipline employees for secret recordings should ensure a fair process including by conducting a proper investigation, where required, and providing all relevant information to the employee before making any decision to dismiss them.

If you have a similar situation or would like to discuss the issues around secret recordings with a member of our team, please feel free to get in touch with 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.  Please seek guidance from your employment lawyer for any questions specific to your workplace.