A big welcome to 2015 from the BuckettLaw team!
2014 moves into the rear view mirror we look forward to what promises to be a big and exciting year for employment law in New Zealand, both for employers and employees.
Over the weekend we had the New Zealand General Election, the National Party was once again the winner on the night, and with a surprising percentage of the party votes will now enter their third term in Government. The big question for us, and you, is what this result means for employers and employees. National are looking like a sure thing to hold a majority in parliament and can govern on their own without the need for minority coalition partners, this means that they will be able to pass the Employment Relations Act Amendments put forward by Simon Bridges without any opposition.
The biggest and most controversial changes to the Act come in the form of Collective Bargaining reform. This is where the Bill faced the most opposition at Select Committee. Sweeping changes come in the form of employers being able to opt out of collective bargaining if a stalemate is reached, the 30 Day Rule, whereby new employees are given the conditions of the collective for the first month is repealed and employers now have the ability to opt out of multi-employer collective agreements. You may not like these new provisions, but put down the signs, the megaphones and back away from the picket line, employers will now have the ability to decrease employees’ pay in response to partial strikes.
A main policy of the amendments is to increase flexibility in working arrangements for both employers and employees. These are implemented in the form of restructures to the provisions around rest and meal breaks, and employees’ abilities to request flexible working arrangements. Any employee may request changes to their working arrangements, including their hours, days or place of work. Previously this was limited to people who had another person in their care. This doesn’t mean you can start working from home in your PJs though! Employers have one month to consider the request and respond and may decline the request under certain circumstances, including quality decreasing, performance suffering, if it will cost them more, or the additional workload won’t be able to be spread among the current staff.
Workers will not rejoice over the new rest and meal break policies, instead of prescribed times the Act will move to a standard of reasonableness, and if an employer can’t reasonably provide breaks then the employer must provide them with compensation. These new standards are interesting as they are not defined and will likely to be tested in the Courts, though it does at a glance seem like an erosion of employee rights.
These changes may not be popular with all, but they will be passed into law soon enough with the result of the election. If you have any questions about how they will impact you as an employer or your rights as an employee, contact BuckettLaw, the employment law experts.
Weight bias and discrimination has the potential to become the new racism. Are you an “obesist”? Or a “fatist” (as they like to call it in my office)?
The reality is that around 1 in 4 New Zealand adults are classified as obese. Obesity is a worldwide epidemic which can have serious consequences for employers and employees. Example: what happens when a job candidate applying to wait tables at your crazy-busy street cafe has stellar credentials, but he is overweight and you worry he won’t be able to keep up with the frantic pace on his feet for 10 hours a day? Can you refuse to hire him because you think he is too large?
The Employment Relations Act 2000 and the Human Rights Act 1993 govern the grounds of discrimination in the workplace. “Obesity” is not specifically referred to as a prohibited ground for discrimination, but “disability” is. Thus it begs the question – is obesity a disability? Disability is defined as:
While obesity may not be a “disability” per se, it may be a significant factor in finding that a person has a disability. Another thought to ponder: what if a person’s obesity is a symptom of a medical condition? Should we distinguish between cause and effect?
The UK judiciary have been faced with some difficult cases recently surrounding obesity issues in the workplace. While they have refused to accept obesity is a disability in its own right, they have concluded that an obese person may be disabled if their obesity has a real impact on their ability to participate in work.
In New Zealand, an employer can specify particular physical characteristics only if those characteristics are essential in order to perform the job satisfactorily, or in order to meet safety requirements. There must be a real and genuine reason for doing so.
Q: How do you get a message home to a nation of gun ho kiwis who grew up with a ‘she’ll be right’ attitude to safety?
A: A rugby analogy
So… We fill Eden park right, four times.. For the sake of the story let’s say four Rugby World Cup matches, Thursday, Friday, Saturday, Sunday. The stadium is full to the brim. Thousands of fans, all there to see the boys in black.
But, during each game, around about the point when the crowd is thinking “Oo that’s a bit close for comfort” and ponders if the ABs can make it through a World Cup without choking, something goes horribly wrong. Panic spreads, mayhem ensues.
At the end of the weekend 100 people are dead, 25,000 have been hurt severely enough to be off work at least a week, 370 have been admitted to hospital and diagnosed with a life threatening condition and more than 190,000 are hurt badly enough to send a claim off to the folks at ACC. Every single man woman and child that went to watch those games has been hurt. The cost of the carnage, $3.5 billion.
It’s front page news, worldwide, Thousands Maimed in Rugby Disaster, New Zealand’s Darkest Day.
OK, so it’s a little far-fetched, no analogy is perfect, but it gets the message through. That’s how many people get injured in the workplace each year, according to the Independent Taskforce on Workplace Health and Safety, the job in hand, cutting that number by 25%, one full Eden park. No mean feat.
Likely outcomes? A large-scale cracking down on those at the top, meaning heftier fines and penalties for companies and directors. Even our biggest fines fall far short of Australia‘s. ( And we all know how much we hate falling short of anything particularly when it comes to the ‘strayans).
So while we look across the ditch and ramp up our fines your company might get caught in the spotlight. The spotlight will be expensive.
Check your health and safety policy before it’s too late. Be proactive, check with us if you need help with the nitty-gritty.
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Click the link below.
TESSA KATE HOGG 21/08/2012
Ahh the wolf whistle. The mating call of tradies. It’s as kiwi as a late night pie, sausage sizzle fundraisers, mint sauce with your Sunday roast. That bit of cheeky banter as you bypass the building site may not be new, but it seems some construction companies are taking it seriously and likely lads are being told to button it or risk their jobs.
The wolf whistle has been under the media spotlight recently both home and abroad. In the US, a construction billboard caused a stir which lead to online petition, an official statement of apology and the removal of the sign. The sign had read: “We apologize for the whistling construction workers, but man you look good!”
Here in Godzone, according to Beck Eleven of the Sunday Star Times, workers are turning to code to get away with their antics following warnings from employers. While there might not be “thou shalt not wolf whistle” paragraphs in their employment contracts, employers like Peter Lockhart of Naylor Love (fantastic name) were cracking down on the practice, “we just don’t tolerate it”.
Wolves get a bit of a bad rep; destined to be the baddie in all Disney stories, they’re always hungry and can’t be too picky about when the next meal comes along. Apparently it all started when naval lads needed to alert each other to on-shore eye candy. The whistler sounded approval; they were hungry… like the wolf. But things have really come on since those days…
It’s not just women that get the whistle treatment. Boats, BBQs, boy’s toys, anything sufficiently desirable to the kiwi bloke might make the cut. The wolf whistle has also proven a favourite call of the cougar when showing her approval of a new stud in the environment.
These days it might not be a whistle per se, “we might yell out one of the guy’s names or number, it’s more about getting the girl to look and embarrassing the other guys”. But the appreciation of a good looking (l)ass is ingrained in the culture says Wellington builder Mick: “we would probably all flock to the window, it’s a bloke’s world, but it’s not meant to be offensive, most girls would know it’s pretty harmless”.
It does seem that there is many a fan of the innocent banter. Rather than take offense, one Wellington professional commented: “I think it’s great. There’s a certain age where it’s flattering, like being asked for ID at the supermarket”. She’s not alone; according to a recent UK survey 8 of 10 women enjoy being paid a compliment, even if it is from a stranger.
However, it does seem to come down to whether it’s cheeky or creepy, “there’s a fine line” says Victoria University student Grace Blanks. “It depends on the guy and the situation. But if you walk past a building site, it’s meant to be a bit funny, a bit appreciative, it’s meant to be a compliment”. Wellington receptionist Caitlin MacMurray agrees: “it depends, if I can see them and they look around my age, and cheeky then it’s alright”. Another noted: “there is definitely a difference between the nice way and a nasty way though.”
Despite the advocates, it seems the wolf whistle may have had its day. Back in 2008, UK’s leading building firm Wimpey banned all workers from whistling, claiming it was outdated and off-putting to the “savvy and sophisticated” female house-hunter. All name jokes aside, it seems Kiwi employers are following Wimpey’s lead and even if it’s not explicitly said, workers like Mick are showing (some) self-restraint in their pursuit of the babe on the street: “you wouldn’t yell anything crude, as far as I know there’s no policy against it but it is common sense.. you’re working on sites with the construction company’s name all over it, you wouldn’t put the companies name in jeopardy.”
The line the employer takes on this matter depends on how they want to be seen. According to employment law expert Barbara Buckett: “there’s a presumption on a construction site that you are a certain type of worker, a red blooded kiwi bloke – the work force is changing though and many employers might want to get away from this.” She notes that: “sometimes it can look unprofessional, other times it’s all in good humour”.
There is no doubt this behaviour is deeply ingrained in the culture, “it stems from the top, if the culture is there then it’s more likely that often the lads will be influenced by management” says Barbara. So the first port of call is having a good look at the culture on site. Then it pays to have your policy and employment agreements as clear as possible. While there may be nothing wrong with the odd whistle, it can be one of those floodgate situations where allowing wolf-whistling opens the gates to much worse. Buckett Law’s policy kits might be just the ticket to get your lads in line. Whether you’re dealing with a wolf pack or a lone wolf, sex and the construction site, it’s an explosive combination.
In another twist to the tale of f-bombs in the workplace,16 year old Mayson Bradford has lost her bid for compensation after flying off the handle at her employer in a phone conversation. Employment Relations Authority (ERA) member James Crichton held the hairdressing junior had a personal grievance after former employer, Anita Good of Zak’s Hairdressing of Halswell, failed to allow a cooling off period following an emotional outburst. However, this wasn’t enough to warrant compensation.
The teen, who didn’t return to work after her medical certificate lapsed, concluded the conversation by allegedly telling Miss Good “Don’t f—– bother, I quit”. While Bradford denied the conversation, Crichton said he was satisfied that it did indeed occur. “ It’s a relatively extraordinary state of affairs that a young employee would completely overlook a significant telephone discussion that she had with an employer, but that appears to be the position in this case”.
Crichton concluded that Bradford did have a personal grievance as a fair and reasonable employer would “not take at face value what was said (in the heat of the moment).” Accordingly, he held that Miss Good “ought to have engaged with Ms Bradford after the…call so as to ensure that, after a cooling off period, Ms Bradford still intended to resign her position.”
However, Crichton also found that Bradford’s “complete contribution to the circumstances” of the personal grievance made her “wholly responsible for it”, consequently she was deprived of any remedies, compensation or otherwise.
So maybe we’re not as loose with our language as our friends across the ditch. (see ‘What the f— do you have to do to get fired?’ https://employmentlawexperts.wordpress.com/2012/07/13/what-the-f-do-you-have-to-do-to-get-fired-these-days/ ). Or perhaps, given that remedies are still being considered, the Fair Work tribunal in the case of the salty tongued seaman, Mark Haliman, will come to similar conclusions as Crichton.
TESSA KATE HOGG 26/07/2012
As winter rolls around and those unexpected sunny autumn days become few and far between, it becomes increasingly tempting to pull up the duvet, press snooze on the alarm clock and hunker down. We are entering the season of “sickies”, where a cup of tea and a movie seems the obvious choice rather than a battle with the wind, rain and monochrome suited stampede on Lambton Quay.
TESSA KATE HOGG 23/05/2012
But how do you break it to your boss.. A call? A text? An email? An unexplained outbreak of chickenpox (no, you never had it as a child)? Surely bosses have heard every excuse in the book, surely they will see right through your Oscar winning worthy croaky voice. Employers beware, there is a new smart phone app on the scene and it has got sick days sussed.
“Skiver” helps you pull ‘the perfect sickie’. It asks you to select the number of days you want off then suggests possible illnesses as well as a list of symptoms just in case you are pressed for more information by a suspicious boss. This cheeky app will even provide an email or text template to send to your boss. Don’t worry about wasting the day, skiver will hook into google maps and provide suggestions of hi-jinks you can get up to in your area on your day off. Now it has never been easier for employees to throw a plausible sickie, or harder for employers to detect it.
While it’s not yet available in New Zealand, there are plenty of imitation apps out there and whether or not employees are using smart phone apps to get the day off they are certainly taking days off in droves.
So while skiver takes the work out of getting out of work, what is an employer to do?
For the tech-savvy, prepared to battle app-on-app ‘Employee tracker’ can note down attendance and reasons for leave, but a more realistic approach, where dishonesty is discouraged and the workplace isn’t such a dreaded place to be, is the best course of action.
At the end of the day it is simple, create a work environment that’s more appealing than a cheeky day off ‘sick’. If an employee looks out to grey skies and resists the temptation to press snooze on the alarm clock for a day in the office, you have been successful.
And Potential skivers beware the rookie error made by Australian Kyle Doyle, who pulled a sickie and then updated his facebook “Not going to work, still trashed, sickie woooo”.
BIG NIGHT OUT, WORK THE NEXT DAY, WHO SHOULD PAY?
We were surprised at Buckett Law by the recent suggestion that there would be an overabundance of employees prepared to take hung-over days as ‘sick days’ under the Holidays Act 2003 and that this would be accepted readily by employers.
Realistically, people come to work to do a job; however there will be an occasion where due to overindulgence their performance may be impaired and it may be difficult to get that work done. There may even be situations where this is dangerous. It really is a question of where the buck stops and abuse of process should not be something that the law endorses.
The oxford dictionary defines illness as “a disease or period of sickness affecting the body or mind” and defines a hangover as “a severe headache or other after-effects caused by drinking an excess of alcohol.” The issue of cause is an important one, particularly as the court of appeal has omitted to define sickness.
Looking to the purpose of the Act, to promote balance between work and other aspects of employees’ lives and, to that end, to provide employees with minimum entitlements to leave when an employee is unable to attend work because they are sick or injured, does not show an easy compatibility with the regular taking of sick leave which has been brought on ones self. Poisoning, in effect. The salience of the cause of sickness is supported by the fact that lying to ones boss, ie claiming the flu when in fact hung-over, is grounds for misconduct.
“All is certainly not lost; this type of behaviour can be dealt with directly through the performance review process as a performance matter”
Nonetheless, if tight policies are not within the contract, ie defining coming to work under the influence of alcohol as grounds for serious misconduct, it is difficult to categorise it as such. All is certainly not lost; this type of behaviour can be dealt with directly through the performance review process as a performance matter, either as a issue of consistently coming to work impaired or as an abuse of the sick leave process.