Employment Law "Embrace the New Normal" - Kate Ashcroft, Partner www.copelandashcroft.co.nz - NZACA Conference

Employment Law
“Embrace the New Normal”

   Kate Ashcroft, Partner
 www.copelandashcroft.co.nz

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Trial Periods: Now

▪ Trial period clause must be included in IEA and state:
   ▪ 90 day timeframe max

   ▪ Date on which trial period starts

   ▪ During trial period, employer can dismiss and employee not entitled to bring personal
     grievance

▪ Employee must be:
   ▪ New

   ▪ Made aware of trial period in offer

   ▪ Advised of right to advice and reasonable opportunity to do so

   ▪ Signed and returned IEA before first day

▪ Trial period dismissals – strict interpretation!

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Trial Periods: Changes

Restrictions proposed:

▪ Employers with

Guaranteed Rest Breaks

▪ Currently: Law flexible and allows for reasonable rest and meal breaks

▪ Change: Prescriptive minimum standards
    ▪ Stipulated breaks at times to be agreed by the parties
    ▪ If no agreement, mandatory times (depending on hours worked)
    ▪ Only employers in “essential services” exempt, and in limited circumstances

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Unions, CA’s and Bargaining

▪ Collective bargaining/union rights strengthened

▪ Employer consent not needed for access

▪ Paid time off for union representatives

▪ Unions to have right to initiate collective bargaining ‘first’

▪ No opt out: multi employer collective agreements

▪ New requirement to provide details about union, and option to join to
  new employees

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“Vulnerable Employees” and Restructuring

▪ Section 69A Employment Relations Act 2000- Specific employees are
 provided special protection in certain restructuring situations e.g cleaning
 services, food catering, laundry and orderly services for age-related
 residential care sector.

▪ Currently: Employers with

Privacy

▪ Privacy Bill 2018 introduced to Parliament on 20 March 2018

▪ Currently:
  ▪ Privacy Commissioner has no power to fine or prosecute for breach

  ▪ Reliance on Complaints Process

▪ Changes:
  ▪ Privacy Commissioner: Greater powers

  ▪ Mandatory reporting of breaches that pose risk of harm to people

  ▪ Requirement: notify affected individuals/Privacy Commissioner

  ▪ Cross border data flow: “reasonable steps” required

  ▪ Fines/criminal offences for breach

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Privacy – what can you do?

▪ Get consent to collect personal information

▪ Have a Privacy Policy

▪ Have a Social Media Policy

▪ Confidentiality clause – employment agreement

▪ Records of settlement – full and final; regarding all claims.

▪ Appoint Privacy Officer as individual responsible for:
    ▪ Compliance

    ▪ Requests made to Agency

    ▪ Working with Privacy Commissioner

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Triangular Employment Relationships

▪ The Employment Relations (Triangular Employment) Amendment Bill

▪ Purpose: Ensure greater protection for employees employed by one employer
  (Primary employer) who work under control and direction of another
  (Secondary employer). (Triangular employment)

▪ Proposed that:
    ▪ Primary employer can be bound by collective agreement that only Secondary
      employer party to; and
    ▪ Employees can claim against Secondary employer.
▪ Secondary employer jointly liable for remedies unless Authority/Court specifically
  order apportionment.

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Domestic Violence – Victims’ Protection Act 2018

▪ Part 6AB Employment Relations Act 2000 – In force from 1 April 2019

▪ Bill also amended Holidays Act 2003 and Human Rights Act 1993

▪ Changes:
   ▪   Definition of “hazard”
   ▪   PCBU must have policy dealing with domestic violence
   ▪   PCBU must train health and safety representatives to support domestic violence victims
   ▪   10 days paid leave for domestic violence victims
   ▪   Short-term flexible working arrangements for domestic violence victims
   ▪   New personal grievance claim
▪ Steps to take:
   ▪ Update policies
   ▪ Update payroll systems

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Holidays Act Review

▪ Taskforce made up of businesses, workers and Government will
 make recommendations to changes to Holidays Act 2003.

▪ Changes:
   ▪ Simpler, easier to use legislation
   ▪ Make holiday and leave entitlements more applicable to work
     arrangements

▪ In the meantime:
   ▪ Comply with current Holidays Act – ignorance is no excuse

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Fair Pay Agreements

▪ Introduction of plan for creation of Fair Pay Agreements by Minister
 for Work Place Relations and Safety.

▪ Establishes pay rates and minimum employment conditions for an
 industry

▪ Aim to lift wages and conditions by paying reasonable, industry-
 standard wages

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Parental Leave Changes

▪ Currently: Paid parental leave payments for up to 22 weeks on
 birth/adoption, can share leave with partners

▪ Change: Increase to 26 weeks, 1 July 2020.

▪ Further changes predicted: Ability for both parents to use paid
 parental leave at same time?

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Pay Equity

▪ Care and Support Worker (Pay Equity) Settlement Act effective July 2017

▪ Aims: Remove wage discrimination based on gender for 55,000 care and support workers

▪ Employers support workers to obtain NZQA Qualifications

▪ New wage structure introduced over five-year period.

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Pay Equity

▪ Original Bill introduced by National Party was withdrawn in
 November 2017.

▪ Julie Ann Genter and Iain Lees-Galloway reconvened Joint Working
 Group on Pay Equity Principles, January 2018.

▪ Expected changes:
   ▪ Prohibiting discrimination on basis of sex
   ▪ Claims for sex discrimination
   ▪ Easier process for filing pay equity claims through employer

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Minimum Wage

▪ 1 July 2018: Minimum hourly rate for care and support workers $19.80 (part of Settlement)

▪ Each and every hour worked, in money (ie not benefits)

▪ Cost of accommodation and benefits deducted from net wages with consent of affected worker.

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Is “on call” work?
              South Canterbury DHB v Stuart Sanderson et al
Facts

▪ Six anaesthetic technicians, (ATS) regularly on call, required to:
   ▪ Report within 10 minutes

   ▪ Stay at accommodation close to hospital (shared accommodation provided)

▪ Restricted while on call

▪ Benefit to DHB significant, crucial to operation

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Is “on call” work?
                South Canterbury DHB v Stuart Sanderson et al
Employment Court held:
• AT’s were “working” while on call, entitled to no less than minimum wage

Considerations:
   • Constraints on freedom of employees;

   • Nature and extent of employee responsibilities;

   • Benefit to employer of having on call work.

Learnings
• Greater the constraints while on call, and greater benefit to employer on call work, more likely it is to be
 “work”.

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Are meetings “work”?
                Labour Inspector v Smiths City Group Ltd [2018] EmpC

Facts
▪ Daily 15 minute sales meeting before work

▪ Staff expected to attend

▪ Staff spoken to about lack of attendance – no disciplinary action

▪ Smith City considered meetings voluntary and therefore, not work

Held
▪ Meetings were not voluntary and were work

▪ Staff entitled minimum wage for each and every worked

▪ Smith City to pay all past and current employee for last 6 years meetings

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Minimum rights prosecutions

▪ Employment legislation outlines minimum employment standards required by employers,
  including:
    •   Written employment agreement;

    •   Wage and time records;

    •   Leave records;

    •   Receive minimum wage for each and every hour worked; and

    •   Records should kept 6 years

▪ Failure could result in:
    ▪   Penalties: $1,000 per breach, up to $20,000 for multiple breaches;

    ▪   Prohibited from employing staff, up to three years;

    ▪   Prohibited from employing migrant staff, up to 24 months;

    ▪   Publicly named

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Minimum rights - what you need to do

▪ Ensure all employees have written employment agreement

▪ Is employment agreement compliant?

▪ Employees to complete timesheets?

▪ Ensure Holidays Act 2003 complied with

▪ Use payroll software, check tailored to business

▪ Be proactive: Identify a problem –fix it.

▪ Systems in place to ensure compliance?

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Hiring Migrant Workers

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Drafting IEAs for Migrant Workers

▪ Written IEA required

▪ Minimum employment standards apply

▪ Remuneration bands now also used to define “skill”.

▪ Skilled Migrant Visa need to meet the following requirements:
    ▪ ANZSCO Level 1-3 occupation AND paid >$24.29/hour; or
    ▪ ANZSCO Level 4-5 occupation AND paid >$36.44/hour; or
    ▪ If occupation has no description in ANZSCO, and pays $36.44 or more
▪ Remuneration bands help determine:
    ▪ Duration of visa granted
    ▪ Whether family members can obtain visas
    ▪ Maximum time visa holder can spend in NZ

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Practical Steps

to ‘Embrace the New Norm’

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Staff Composition and Organisational Structure

Leadership environment today
▪ Invest in leaders

▪ Encourage collaboration

▪ Use technology

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Staff Composition and Organisational Structure

Great leaders make great business
▪ What budget commitment made to leadership development?

▪ What is leadership development plan?

▪ Have skills gaps been mapped?

▪ How does plan align with values/business goals?

▪ Measurable outcomes

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Unions and Collective Bargaining

▪ Strategy is key!

▪ Relationships are key

▪ Seek advice

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Recruitment Process

What makes a good employer and a great workplace?

▪ Clear vision of organisation

▪ Understood and bought in to by employees

▪ Engaged employees – individuals who take pride in belonging

▪ Good leaders – lead by example, understand that culture and brand are key

▪ Sound practices and process

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The Real Cost of People Decisions

                         Cost to Recruit
                         Cost to Train

                         Cost of Failure

  Cost of managing poor performance

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Attracting and Retaining the Best Employees

▪ Plan for performance
    ▪ Have systems and processes in place
    ▪ Job description/IEA/Other policies
    ▪ Thorough recruitment and induction processes

▪ Measure performance
   ▪ Reporting mechanisms

▪ Support and training

▪ Give feedback and direction

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Questions?

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Disclaimer

             Copeland Ashcroft Law produced this PowerPoint and supporting materials to provide a
             brief summary of employment law issues and developments affecting employers and their
             businesses. Although we have taken care to ensure accuracy, details may be omitted
             that may be directly relevant to you.    This PowerPoint, supporting materials and the
             information contained within them do not purport to be and should not be used as specific
             legal or professional advice and we accept no responsibility for any errors or omissions or
             for any loss or damage resulting from reliance on or use of same. We recommend that
             you obtain legal advice specific to your situation before proceeding and would be happy to
             help in this regard

                                                              © Copyright Copeland Ashcroft Law 2018

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