Category Archives: Uncategorized

HOW TO NAVIGATE THE WORK CHRISTMAS PARTY

In comes the festive period and the holiday season, a time for staff to let loose and enjoy their time and work, especially with the office Christmas party, but not too much fun! We’re here with some handy tips to ensure that you don’t prick yourself on mistletoe during the festivities.

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BuckettLaw has Moved Offices!

BuckettLaw has moved into bigger and brighter premises! We are now located at 1/309 Willis Street:

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We’re excited about a fresh new look, in an up and coming part of town and we’re looking forward to working with our clients in a great environment.

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Come in and see us, whether it’s just to say hi or to sort out any range of employment issues.

The team at BuckettLaw look forward to working with you in our new premises!

“MONDAYISATION” – WHAT YOU NEED TO KNOW

In 2014 the Holidays Act was amended to allow for the Mondayisation of ANZAC day and Waitangi Day. All around the country Monday to Friday workers rejoiced as they would no longer miss out on a precious day off when public holidays fell on a weekend.

I hate mondays

The issue becomes how it impacts businesses and employees.

Trading Restrictions

Trading restrictions apply on the day the day the holiday falls. This means that for this year shops that are not exempt must be closed before 1pm on ANZAC day. No trading restrictions apply on Monday 27 April.

If The Employee Normally Works Saturdays

If the Employee normally works Saturdays, but you do not require them to attend work then you must pay them their normal day’s pay.

If the Employee normally works Saturdays and you remain open then you must pay them time and a half for the hours they work, as well as a day in lieu to be taken at a later date to be agreed upon between the parties.

If The Employee Normally Works Mondays, But Not Weekends

If the Employee does not work weekends then the holiday transfers to the following Monday.

If the Employee normally works Mondays, but you do not require them to attend work then you must pay them their normal day’s pay.

If the Employee normally works Mondays and you remain open then you must pay them time and a half for the hours they work, as well as a day in lieu to be taken at a later date to be agreed upon between the parties.

If The Employee Normally Works Saturdays And Mondays

An Employee is not entitled to “double-dip” on the public holiday. They only get the entitlement once. Therefore if the Employee works Saturdays the holiday is treated as falling on that day and the rules above apply. Monday becomes a normal day for them.

If you require further advice on this contact BuckettLaw and we’ll be happy to assist you with making sure you get it right and everyone is getting the right entitlements.

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Sexual Harassment – Health and Safety in the Workplace

SEXUAL HARASSMENT is illegal. It is an employer’s responsibility to ensure that employees have a healthy and safe work environment. A friendly touch to one person could be an unwanted advance to another. A hilarious joke could make a co-worker feel uncomfortable. Sexual harassment in the workplace is a huge issue all over the world. It is something that both employers and employees need to be aware of, both for the protection of themselves and others. It is important to take steps to prevent sexual harassment from occurring, but also to react appropriately to incidents of sexual harassment.

David Brent

Sexual harassment is unlawful when it occurs in employment under section 62 of the Human Rights Act 2003 and is also grounds for a personal grievance under section 108 of the Employment Relations Act 2000.

Sexual harassment is unwanted behaviour of a sexual nature, it can include, but is not limited to:

  • Requests for sexual contact with an implied or overt promise of preferential treatment or threat of detrimental treatment if the request is refused.
  • Behaviour of a sexual nature that is unwelcome or offensive, which has a detrimental effect on an employee.
  • Sexual jokes.
  • Comments about another person’s sexual activities.
  • Touching or grabbing someone.

As an employee it is important to know when your conduct may be perceived by someone else as sexual harassment, even if it doesn’t seem that way to you. If you are the victim of sexual harassment it is important to keep records of incidents that offend you. Talk the situation over with someone you trust. You may confront the person who is harassing you, though it is understandable if you might feel uncomfortable doing this. Report the sexual harassment to a superior or human resources. If it is not resolved you have the right to contact a lawyer, the Department of Labour, or possibly the Employment Relations Authority for further assistance. There are many remedies available.

As an employer it is important that you foster a healthy working environment. Sexual harassment can come from fellow employees or customers. All allegations of sexual harassment must be taken seriously and investigated. Steps must be taken to prevent it from happening again. Not all sexual harassment will be reported so it is important to keep vigilant in order to prevent liability and make your business a safe and enjoyable place to work. Make all employees aware of the sexual harassment policies and create welcoming channels for reporting.

The Courts have taken a very hard line when it comes to sexual harassment, Chief Judge Goddard in Z v Y Ltd and A observed that:

“…sexual harassment poisons the atmosphere in the workplace. It is wholly unacceptable and entirely devoid of any redeeming features. It follows that its occurrence can never be met with matters of justification, excuse, or mitigation. It is an attack on the basic human right that all persons must be supposed to have to pursue their economic well-being in conditions of freedom and dignity.”

The Court of Appeal in Smith v Christchurch Press Company Ltd held that the conduct at issue doesn’t have to occur in the workplace:

“It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, whether that is because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employee’s duties; because it impacts upon the employer’s obligations to other employees or for any other reason it undermines the trust and confidence necessary between employer and employee.”

Mr Smith was held to have been justifiably dismissed after a complaint from a co-worker about an incident at Mr Smith’s house where the two went for lunch.

The way an employer reacts to incidents of sexual harassment is extremely important, both for fostering productive employment relationships and for preventing liability. In Adkins v Turk’s Poultry Farm Ltd an employee had complained of sexual harassment and had reported it to her superiors. The employers raised concerns with the employee accused of sexual harassment and took some steps to separate the man from the complainant; however, they never told the complainant of the outcome of her complaint. Unbeknownst to the employer the harassment continued. The complainant, thinking her complaint had been ignored, suffered in silence. The complainant eventually resigned due to the continued harassment. The employer was found to be liable for constructive dismissal, due to the fact that they had not informed her of steps they were taking to fix the situation and stop the harassment.

Due to the sensitive nature of sexual harassment it is often not smartest course of action to deal with complaints internally. The people investigating may be too close to the parties involved and may find it difficult to act impartially and thus within the law. This is where it would be best to have a third party act for the business. As they are sufficiently removed from everyone involved they can act fairly and ensure that the necessary procedures are followed. This safeguards the business from flawed procedure and decision making and ensures that employees can have confidence in the systems in place.

It is essential that you have in place:

  • A system for educating your staff on sexual harassment;
  • Policies and procedures in place for the prevention and reporting of sexual harassment; and
  • Systems in place to appropriately address incidents of sexual harassment.

BuckettLaw is always available for advice in these situations and has the systems in place to thoroughly investigate issues in your workplace.

Employment Relations Act Changes 2015

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Employment Relations Act Changes 2015

Practical Consequences of Changes

  • The changes come into force on 6 March 2015.
  • Contracts must be renegotiated for the new rest and meal break rules to take effect.
  • Workplace polices may need to be updated to take into account changes to the good faith obligation. The obligation itself has not changed, but there are new requirements to provide information.
  • On 1 April 2015 the minimum wage increases to $14.75 per hour.

Flexible working arrangements

  • Any employee may now request a flexible working arrangement. Previously, only an employee who ‘has the care of any person’ could.
  • An employee can make a request at any time. Previously, 6 months employment was required beforehand.
  • An employee may now make an unlimited number of requests per year. Previously, there was a statutory limit.
  • Employers must now respond to requests within 1 month, and must respond in writing and include an explanation of any refusal of the request.

Rest and meal breaks

  • The Act no longer specifies set breaks for given hours of work. An employer must instead provide breaks that:
  • provide the employee reasonable opportunity for rest, refreshment, and attention to personal matters; and
  • are appropriate for the duration of the employee’s work period.
  • An employer may restrict rest breaks and meal breaks (for example, requiring the employee to perform work duties during the break). However, only if:
  • It is reasonable and necessary with regard to the nature of the work, or;
  • It is reasonable and agreed to by the employee and employer (this does not have to be in the employment agreement).
  • The employee must be in the workplace, performing work duties, aware of work duties, or expecting interruption.
  • An employee may now agree not to have breaks.
  • An employer may refuse to provide breaks if it cannot reasonably provide them.
  • Compensation must be paid where no breaks are to be taken.
  • Compensation must be reasonable: for example, by providing equivalent time off at another time, or payment of a similar value as the break.
  • An employer cannot contract out of the obligation to provide reasonable compensation. Any attempt to do so will invalidate the agreement not to take breaks.
  • Discussions over rest and meal breaks should be made in good faith.
  • Existing meal and rest break provisions will continue in effect, unless a change is agreed in an individual or collective agreement.

Continuity of employment – Part 6A of the Employment Relations Act

  • The class of ‘associated persons’ has been narrowed, to make it easier for businesses to qualify as a small and medium enterprise.
  • Time frames have been set for employees transferring under Part 6A.
  • Employers must provide detailed information to the new employer on employees who are transferring under Part 6A.
  • There is now a scheme for apportioning service-related entitlements of the transferring employee.
  • The old employer cannot change the work affected by the restructuring, or the terms and conditions of the employee’s employment.
  • More information can be found at: http://www.dol.govt.nz/er/services/law/legislationreviews/04-continuity.asp

Good Faith

  • If an employer is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of an employee’s employment, then relevant information must be provided.
  • Confidential information does not need to be provided if it would be an unwarranted disclosure of the affairs of another employee, or if it legally must stay confidential, or if there is good reason to keep the information confidential. Otherwise, the employee is entitled to know confidential information about themselves.
  • Obligations under the Official Information Act 1982 and Privacy Act 1993 still apply.
  • Employees should know the identity of their accuser or the nature of any allegations made against them unless there is good reason for that information to be kept confidential.

Collective bargaining

  • Parties are no longer required by good faith to come to an agreement. Application can be made to the ERA to declare that bargaining has ended.
  • Employers may now opt out of multi-employer bargaining from the start.
  • Non-union employees no longer gain the benefit of collective agreements for 30 days.
  • Proportionate pay reductions may be made as a response to partial strikes.
  • Advance written notice must be given for proposed strikes and lockouts in all sectors.

Employment Relations Authority

  • At an investigation meeting’s conclusion, the Authority must give an oral determination within 1 month (with a written record of that determination)
  • Or the Authority must give an oral indication of its preliminary findings (unless extra evidence is provided) and deliver a written determination within 3 months of the investigation meeting or whenever extra evidence is provided, whichever is later.
  • The Authority can only reserve its determination if there are good reasons why it is not practical – a reserved determination must be delivered within 3 months of either the investigation meeting or any extra evidence being provided, whichever is later.
  • Sometimes matters may be decided without an investigation meeting. Determination must be given within 3 months.

For further information on how to implement these changes contact Buckettlaw:

Phone: 04 472 8600
reception@buckettlaw.co.nz
http://www.bucketlaw.co.nz

Level 6
166 Featherston Street
PO Box 5062
Wellington 6145

Planning a Family? Your guide to parental leave.

There are approximately 173 babies born each day in New Zealand. That’s over 63,000 NZ mums, and 63,000 NZ dads welcoming a wee tot into their family each year. With new promises being made around paid parental leave, we thought it important to remind parents-to-be of their entitlements under the current and future laws, and to inform employers of their obligations.

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Workplace bullying…how to deal

Lessons from Ron Burgundy – dealing with workplace bullies

Freddie Shapp: “You’re on the 2 AM to 5 AM slot.”

Ron Burgundy: “What? That’s the graveyard shift!”

Brick Tamland: “I ain’t afraid of no ghost!”anchorman2

It may take more than a ghost to scare Brick, he’s one tough guy, but he doesn’t cope so well when it comes to bullies. Workplace bullying is responsible for costing kiwi employers tens of millions of dollars every year. According to a joint university study in 2012 one in five kiwi workers suffer from workplace bullying. It’s no surprise bullying costs employers so much when you look at the effects on those targeted, some of which include:

  • high levels of stress;
  • reduced job satisfaction and commitment to the organisation;
  • withdrawal, leading to decreased productivity;
  • decreased concentration,
  • absenteeism and higher staff turnover.

Bullying affects everyone: the victim, their family, their friends, other employees and a business’s reputation. A bully can transform a pleasant workplace into a dreaded climate of fear, frustration and disconnect. Victims may reach out to co-workers to gain sympathy and support, causing a ripple effect throughout the workplace that may have the effect of normalising and enforcing the behaviour. 

Auzzie’s position on workplace bullying

In 2006 the tragic suicide of 19 year old Brodie Panlock in Melbourne spurred placing the issue of workplace bullying firmly on the forefront of Victoria’s legislative agenda.

bullyingBrodie was a waitress who sustained constant bullying from 3 male coworkers, (one of which she was formerly romantically involved with). The boss was aware of the bullying and did nothing to prevent it other than saying to the men, ‘take it out the back’. Among her list of torments she had fish oil poured all over her and in her bag, was spat on and called fat and ugly.

With no specific legislation dealing addressing workplace bullying at the time, the 3 workers pleaded guilty to failing to take reasonable care for the health and safety of persons and the boss was found guilty of failing to provide and maintain a safe working environment.  All were fined personally and the boss’s company was fined an extra $220,000 – being $355,000 in total.

The state of Victoria recognized the seriousness of the issue and responded in 2011 by introducing legislation that made workplace bullying a crime punishable up to ten years in jail.

How to deal?

It is important to identify your style of dealing with conflict. In his recent book “Employed But Under Fire” Michael Smyth poses the crucial question, do you fight or flight? His book explains how to use your initial reactions in a positive way to deal with bullying. For some, their immediate response to conflict is to ignore it and walk away, while others stand up and fight. No matter your personality, if you are being bullied you are not alone, and there are options out there. Smyth’s book covers various ways to tackle bullying at work.bully1

Often people are nervous about seeking help, or they may feel their situation doesn’t warrant legal action. Specialists in employment law (such as BuckettLaw) deal with workplace bullies on a daily basis. Seeking legal advice will help you weigh up your options and assess the likelihood of a successful personal grievance claim.

Employers must keep in mind that workplace conditions may trigger or enable bullying. This can include workers knowing that senior staff ignore accusations of workplace bullying, and an overly excessive competitive or stressful work environment may also trigger workplace bullying. The employer DOES become culpable for the bullying once he becomes aware of the problem and will be liable for compensation if the allegations are proven correct. The most important thing for employees and employers to know is that once awareness is raised of a bullying situation, employers have an obligation to investigate the matter and do all they can to stop it. Employees should keep a diary of the incidents of bullying.

Ensuring the happiness and safety of staff ensures a more efficient and productive workplace … so all business should do all they can to combat bullying! We need strong bosses to combat this problem – creating an at work environment where it is very clear that bullying WILL NOT be tolerated.

The Law

Employers may be liable under the Health and Safety in Employment Act 1992 for failure to address bullying allegations where stress is identified as a workplace hazard. If complaints are ignored, the employer is failing to take practicable steps to ensure a safe workplace environment.

It is important for employees to know that discrimination in the work place on the grounds of race, religion, sexual orientation etc. is prohibited under the Employment Relations Act 2000 and the Human Rights Act 1993.sos bully

There are plenty of cases out there where judges rule in favour of the victims of workplace bullying. In Corbett v UDP Shopfitters LTD the Employment Relations Authority found the applicant was subjected to prolonged abuse by co-workers, which fell outside acceptable banter. This was based on the definition that bullying and harassment is “something that has happened that is unwelcome, unwarranted and causes a detrimental effect”. Corbett claimed his supervisor would swear at him and abuse him, and another supervisor also abused him making derogatory remarks about his Irish Nationality. The employer failed to take action after being told of the abuse, telling Corbett to “suck it up”.  The employer was ordered to pay Corbett $3,161 reimbursement of lost wages and $10,000 compensation.

In August 2012 the Business, Innovation and Employment Ministry’s labour group began consulting with a variety of agencies to create a best-practice guideline. This is the closest the government has come to directly addressing workplace bullying, without so far as to formally introducing a code of practice or amending legislation. We are desperately awaiting arrival of this guideline.

There will always be bullies – there will always be those who are jealous or feel threatened by the capabilities of someone in a lower position than themselves. There were bullies at kindergarten and there will be bullies at work. But awareness is increasing and people are not standing by and letting them get away with it. Make some noise, and help us at BuckettLaw help you.

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GoldenEye – who’s watching you?

We all love a good James Bond film – plenty of action, guns, spies, a gorgeous woman, and Bond comes out on top. But when this becomes your reality, minus the action, guns, and gorgeous women, who will come out on top?

GPS technology is becoming a common tool used by employers to keep tabs on their employees whereabouts. This aims to prevent employees from abusing their privilege of having use of a work vehicle, diverting from their destination, and falsifying timesheets. That brand new iPhone 5 given to you on your first day of work may have seemed like a generous gesture at the time. But when you realise your employer has been using it to track you, I would imagine you’d like to throw their generous gesture right back at them.

Why shouldn’t an employer track their employees? If their employees are where they say they are, and doing what they say they are doing, what’s the problem? Employer-friendly apps are in abundance. Beginning at the tempting price of ‘FREE’, these apps are advertised as perfect for tracking your friends, children and work colleagues. ‘Trackster’ ($2.59) is a popular choice, claiming it can “make a big difference to businesses” by increasing productivity. These GPS tracking apps can track an employee’s whereabouts, how long they have been there for, where they have been previously, and follow them while they travel. James Bond isn’t so unrealistic after all!  But with this incredible technology comes major issues of privacy, consent and reasonableness.

Should an employee have to know and consent to being ‘spied on’ by their employer? And if they do consent, where does the ‘spying’ stop? It is unreasonable for this tracking to be 24/7 surveillance.  Surely it should shut off as you leave the office at the end of the day, and resume upon your return the following morning. Yet none of the apps pride themselves in having this automatic capability yet. If your iPhone or Android is being tracked during work hours, then chances are your employer can check your whereabouts any time of the day or night. The old croaky call into work on a Friday morning because you have come down with something overnight will no longer suffice when your employer can log into their Bond technology and see you happened to be within a 30 meter radius of the local bar only 4 hours ago. Good luck explaining that one.

This leads into the issue of privacy. Surely it is none of your employers business where you were last night, whether it be a bar, gay strip club or another employee’s residence. This could lead to all sorts of other employment issues – discrimination, workplace bullying – don’t get me started! So the decision to ‘spy’ on employees could have adverse effects. In 2010 the Law Commission reviewed the law of privacy and considered the issue of surveillance in the workplace. Their report acknowledged the concern of the inequalities of power between employers and employees. The issue stated that “employees cannot be assumed to have freely consented to restrictions on their privacy, and workers need some legal protection of their privacy in order to redress the power imbalance”. However the Commission came to the conclusion that the existing law, in particular the duty of good faith contained in the Employment Relations Act 2000, was at present, adequate to deal with workplace surveillance issues.

To combat privacy issues, companies can issue policies so employees understand they shouldn’t have any expectation of privacy during work hours or when using a work vehicle. But this isn’t a guaranteed solution. What’s to stop an employee purposefully misplacing their smartphone, or accidentally leaving it at work? This would allow them some privacy and completely undermine the whole tracking regime. Ha! This Bond technology isn’t foolproof!

Or that’s what a Christchurch man thought until he was dismissed for serious misconduct after falsifying his timesheets. Mr Stuart was discovered by GPS technology fitted into his work vehicle when his supervisor became suspicious and requested their employer review the GPS records. This review revealed that often Mr Stuart’s work vehicle was parked at his residence well before he claimed to be finishing work each day. The Employment Relations Authority found that Mr Stuart was justifiably dismissed as he was employed in a position of trust, and falsifying timesheets was considered to be serious misconduct in the company’s Code of Conduct. This recent decision indicates the reality of GPS tracking in the workplace. Understandably employers want to maximise productivity, and there are employees out there willing take advantage of any situation.

Is GPS tracking the solution? Employers will love it – nothing will go unnoticed. Employees will hate it – nothing will go unnoticed. What is reasonable ‘spying’? We will have to wait with anticipation for this Bond sequel to play out.

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Minimum wage on the climb!

Exciting news for all of you struggling to make ends meet – the government has proudly announced an increase in the minimum wage is set to take place from April 1st.  Woohoo! 25 cents more an hour!  This takes our minimum wage from $13.50 to $13.75 an hour.  That’s a $2 increase per day, and workers will earn around $10 more a week.  This is before tax.  Can our lowest paid workers afford to live off an income of $550 (pre-tax) a week?

There are thousands of real people, doing real work with real responsibilities in our communities such as caregivers, security guards and cleaners to name a few.  These people have families to feed and bills to pay, purely for survival.  But what if they wish to go on a holiday, pay for a child’s school camp or dabble in a bit of Wellington’s culture? Maybe for people in minimum responsibility jobs, some might view $13.75 as a fair representation of their efforts.  When making a comparison to the UK minimum wage of £6.19, our $13.75 doesn’t look so bad. But Australia dishes out a grand $15.95, or a minimum of $606.40 per week.  No wonder so many young Kiwis are heading over the ditch.

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And the governments excuse for this pitiful increase? Labour Minister Simon Bridges claims our wage rates represent “a careful balance between protecting low paid workers and ensuring jobs are not lost as the economic recovery gains pace.”  Thus, we must consider reality. In a utopian world all employers would have the funds to comply with minimum wage requirements, no matter the economic situation. This seems to be the belief of writers of an independent report prepared for Service and Food workers union.  This report published two weeks ago identified $18.40 as a suitable ‘living wage’.  Wouldn’t this be amazing!  That’s an extra $186 per week – now that would be something to get excited about!  But in this economy, with job losses being a regular occurrence, this prospect is unfortunately out of reach.  Still, workers and employers need to stay positive.  25cents is better than nothing. And if recent trends are anything to go by, the minimum wage should continue its climb, taking you along for the ride.

And for all you employees on minimum wage, remember:

  • The harder you work, no matter what the pay, the more respect you will gain in and around the workplace;
  • A positive attitude goes a long way; and
  • Keep communication lines open between you and your employer.  If you are struggling to make ends meet, discuss your options openly.

Employers paying minimum wages, take note:

  • Most employees on minimum wage live from payday to payday.  If you want your employees to feel valued, offer them something special like concert tickets or a voucher for excellent performance.  Take a little time to show interest in your employees and keep them motivated.
  • If money is tight, simply praising employees on their performance creates a positive work environment.  
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Mmmmmmmmm

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Just another day at the office battling Valentines Day eager beavers to bring BuckettLaw chocolates to you. Lovers of all things chocolatey watch this space.

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