bronte - Copeland Ashcroft

The Holidays (Bereavement Leave for Miscarriage) Amendment Bill 2018, proposes to allow for a mother and her partner or spouse up to three days paid bereavement leave following a miscarriage.

Currently, the bereavement provisions of the Holidays Act 2003 allow for leave following the death of a child, grandchild, grandparent, parent, partner, partner’s parent or sibling. However, its application to miscarriages and stillbirths remain ambiguous.

If the Bill is passed, this ambiguity will be removed by making it clear that the unplanned death of a foetus will constitute grounds for bereavement leave.

The Bill was introduced in August 2018 and is currently at its First Reading. We will keep you updated as the Bill progresses through Parliament.

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.

September 2018

The Minister for Work Place Relations and Safety recently introduced a plan for the creation of fair pay agreements (FPAs), covering basic standards, such as pay rates, across particular industries as negotiated by representative employers and workers from that industry. Once agreed, these basic standards would be recorded in an FPA, which would establish minimum employment conditions across an entire industry or an occupation and would apply to all employees and employers in that industry or occupation, regardless of whether the employees are union members.

Negotiations for a FPA would begin when “a sufficient percentage” of employers or employees call for one, and would be held between businesses and unions within the relevant industry. Strikes and industrial action would not be allowed during negotiation.

The Minister says the aim is to prevent “a race to the bottom” in certain industries by preventing good employers from being undercut by those seeking to drive conditions down, and that FPAs may also improve “coordination across industries or occupations” and thereby increase productivity. However, concerns include the potential impact on competition, and increased price for some goods and services, as well as undermining of union membership and possible job losses.

A working group, made up of a panel of representatives from businesses and unions along with legal and economic experts, has been established to consider the details of how the plan would work, with recommendations expected to be put the Minister by the end of this year. We anticipate that a bill is likely to then be introduced for consultation.

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

On 19 September 2018, the Government introduced the Equal Pay Amendment Bill (Bill) to Parliament.

This Bill replaces the previous pay equity Bills introduced to Parliament in recent times which we discussed here and here.

This new Bill proposes to amend the Equal Pay Act 1972 by introducing a new process for workers to use when making a pay equity claim by using existing resources such as bargaining in good faith, facilitation and mediation to address these claims, with escalation for decision in the Employment Relations Authority or Court to be used as a last resort. Currently, this is an employee’s only option.

Under the Bill, an employee who wishes to raise a pay equity claim can only do so where it is arguable that the work that is performed is predominately done by females and that it is currently or historically undervalued. The claim must also provide evidence of why the employee considers this to be the case which may include information such as the origins and history of the work, what aspects of the role have been undervalued and provide relevant market data

The Bill also proposes to:

prohibit an employer from offering different rates to employees for similar or substantially similar work;
require an employer to notify all other employees who do similar or substantially similar work that a pay claim has been made;
allow an employee to raise an unlawful discrimination, equal pay or pay equity claim under either the Human Rights Act 1993 or the Employment Relations Act 2000; and
issue a penalty against the employer if they do not comply with certain aspects of the Act.
Controversially, the Bill also proposes that the Employment Relations Authority and the Employment Court are given the power to award back pay for pay equity claims, which has created a real issue in industries such as aged care already.

If the Bill passes without changes being made, an employer would be liable to pay their employees up to six years of back pay if a valid pay equity claim is found. This inclusion of this section is reportedly against the advice of the working party that was set up to review this issue who recommended that the issue of back pay should be a matter of negotiation between the parties.

We will keep you posted on it’s progress via our newsletter, InTouch.

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

October 2018

The Domestic Violence – Victim’s Protection Act 2018 (Act) will come into force on 1 April 2019, directly impacting the Employment Relations Act 2000, the Holidays Act 2003 (HA) and the Human Rights Act 1993 (HRA)

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. Such employees will also be able to request short term variations to their working arrangements, of no longer than two months. The definition of domestic violence includes physical, sexual and psychological abuse in a past or current domestic relationship.

The Act includes continuous service requirements before the entitlement arises, in the same way as for sick and bereavement leave entitlements. Employees will have to advise employers of their intention to take this type of leave and they may be expected to provide evidence of the domestic violence eg a Police report.

Employees will have grounds for a personal grievance or a claim under the HRA if they are treated adversely because they are person affected (or suspected or assumed to be affected) by domestic violence (including which occurred historically).

Proposed changes to the HSWA including varying the definition of “hazard” to include reference to domestic violence, requiring PCBUs to have a policy on dealing with domestic violence and to train health and safety representatives to support workers who are victims of domestic violence have not been included in the Act.

What does this mean for employers?
Employers will need to ensure decision makers are aware and educated in the changes, and will need to review various policies including leave policies. Consideration should be given to implementing a separate domestic violence policy which we recommend includes a requirement for proof of domestic violence. 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.

Given it is a legal requirement to ensure employees are aware of their minimum HA entitlements at the beginning of the employment relationship, individual employment agreements should be amended to refer to domestic violence leave. If you need help to update your agreement, or with drafting domestic violence policies please contact us.

October 2018

Join us at our next free seminar on Drug and Alcohol Testing at Work – Answering the Why’s and How’s

This seminar is for employers who are looking at implementing drug and alcohol testing in the workplace or perhaps are already doing this but not sure if they’re doing it correctly.

We’ll touch on a number of legislative areas from health and safety through to privacy as it’s important to get it right!

For further information on locations and presenters, or to register please visit https://www.copelandashcroft.co.nz/training-events

Please register to secure your place as numbers are limited.

The Holidays (Bereavement Leave for Miscarriage) Amendment Bill 2018, proposes to allow for a mother and her partner or spouse up to three days paid bereavement leave following a miscarriage.

If the Bill is passed, this ambiguity will be removed by making it clear that the unplanned death of a foetus will constitute grounds for bereavement leave.

The Bill was introduced in August 2018 and is currently at its First Reading. We will keep you updated as the Bill progresses through Parliament.

September 2018

As mentioned in our previous article, the Government established a taskforce earlier this year to conduct a review of the Holidays Act 2003 (Act).

The taskforce has now released an issues paper for public consultation. It has identified the issues to resolve as part of its review and invites further comments and submissions by 12 October 2018.

Many employers struggle with the current Act’s lack of guidance on how minimum entitlements are to be provided for in different working situations. Calculations can be straightforward for employees working a standard, five day, 40 hour week. However, difficulties arise in cases of flexible or variable work practices where an employee works unpredictable hours or receives variable pay, such as commissions.

This is highly problematic because employers are generally unclear on what calculations they should be using depending on an employee’s working arrangements. Knowing what formula to use requires good knowledge and understanding of the Act, as well as correctly configured software if using payroll systems.

Key issues highlighted by the paper include:

What payments are included in an employee’s ‘gross earnings’ and ‘ordinary weekly pay’
Calculating ordinary weekly pay and average weekly earnings, including when it is not possible to use the formula for ordinary weekly pay
Definition of an ‘ordinary working week’ and an ‘otherwise working day’
Determining when and which averaging formula (Relevant Daily Pay, Average Daily Pay, Average Weekly Earnings or Ordinary Weekly Pay) should be used
How to treat sick and bereavement leave arising while an employee is taking annual holiday
Defining what a ‘week’ is
‘Intermittent or irregular’ employment and ‘pay as you go’ holiday pay; and
Various complexities which create complications for payroll systems and lead to non-compliance with the Act
Changes are not expected until mid-2019. In the meantime, incorrect calculations cannot be excused by the complexity of the current Act or ignorance of the law, and the Labour Inspectorate is regularly reviewing compliance with the Act and pursuing claims, including penalties, against employers who do not meet requirements. The liability risk for incorrect payments is significant at six years, the current limitation period for claims, and identified risks are increasingly a feature of audit reporting. If you are unsure about an employee’s holiday entitlements and payments, our team can assist you.

September 2018

Following the recent Select Committee report on the Employment Relations Amendment Bill 2018, it remains largely unchanged, although small amendments have been recommended. You can read more about the Bill here.

Unfortunately, the Select Committee has largely ignored the concerns of employers and has also been criticised by unions.

The proposed amendments include:

Union delegates representing employees are to be paid at same rate as when performing ordinary duties;
Clarifying the process, cost and notification requirements for unions seeking information from employers;
Collective agreements must include minimum rates;
30-day rule does not prevent negotiation of more favourable terms and conditions for employees who are non-union members;
Employers engaged in the protection of New Zealand’s national security (in addition to employers in essential services) to be exempt from prescribed rest and meal break requirements;
Clarifying compensation calculation rest and meal breaks for variable rate workers unable to take breaks;
Clarifying the way which union information is to be provided to new employees, and when/how new employees can notify of joining a union, or otherwise;
Minister to have ability to amend categories of “vulnerable workers” in the context of restructuring, based on specific criteria including the frequency of restructuring in the sector and bargaining power of the employees;
Defining wages as including amounts payable for time, piece work or commission; and
Specifying that minor or technical errors will not invalidate strike notices.

The Bill will return to Parliament for its second reading and is expected to pass later this year. We will continue to monitor its progress and update you.

These changes should be noted by employers as they review their business to ensure compliance with upcoming legislation. In the meantime, if you have any concerns or queries about these upcoming changes, please contact our team.

September 2018

Fact finding investigations can be tricky and difficult to master, but employers are expected to get both process and outcome right. Examples of occasions when an employer is required to carry out a fact finding investigation (ie before any disciplinary investigation) include where there are conflicting accounts of an incident that has occurred, and where “he said, she said” complaints are made. It is important to undertake an investigation that is substantively and procedurally fair to avoid a successful claim of unjustified disadvantage and/or dismissal.

In practical terms, a fair investigation process requires as a minimum:

Checking and following any rules contained in employment agreements and relevant policies on how investigations will be conducted, including timeframes for completion;
Advising affected employees (who are complained about, or who may be to blame for an incident) of what has been alleged, including that a formal disciplinary process may become necessary and what steps will be taken in investigating. Further, that they can seek independent advice and bring support to any meeting held regarding the matter;
Putting in place appropriate protections for other employee implicated in the process (for example, separating complainant and the person complained about);
Speaking to relevant witnesses to get their accounts of events;
Providing all relevant information including those witness statements to the affected employee/s and providing an opportunity for their response;
Considering all relevant information in reaching factual findings as to what occurred;
Determining what next steps are necessary, for example, a disciplinary investigation process, and advising the affected employee/s of that. You can read more about disciplinary investigations here
Employers should also consider whether it is appropriate to engage an external investigator, or whether there is the expertise and necessary independence within their organisation to conduct the investigation. Depending on the circumstances of the allegations, the people involved and the nature and severity of the allegations, the investigation process may require more comprehensive steps and considerations than those outlined above.

In the recent case of Hayashi v Sky City [2018] NZEmpc 14, Mr Hayashi was reinstated to his position at Sky City Casino, compensated $25,000 and received lost wages due to the Court’s finding that the investigation process, “while having the trappings of a formally fair procedure, had underlying flaws” which were “serious defects”. Had Sky City fairly conducted an initial fact finding investigation before starting a disciplinary investigation process and taking action against Mr Hayashi, this could have been avoided. The Court criticised Sky City’s process because the grounds for Mr Hayashi’s dismissal was different than those initially raised, all relevant information was not supplied to Mr Hayashi before Sky City made its decision to dismiss him, there was an issue of bias and Mr Hayashi’s responses were not seriously considered by Sky City.

If you are involved in an investigation process, and need guidance, our team can guide you through the necessary steps.

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.
August 2018