Tag Archives: Law

What the Election Results Mean for You

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is reached, the 30 Day Rule, whereby new employees are given the conditions of the collective for the first month is repealed and employers now have the ability to opt out of multi-employer collective agreements.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.

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A Weighty Issue

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?  obesity

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:

  • physical disability or impairment;
  • physical illness;
  • psychiatric illness;
  • intellectual or psychological disability or impairment;
  • any other loss or abnormality or psychological, physiological, or anatomical structure or function;
  • reliance on a guide dog, wheelchair, or other remedial means;
  • the presence in the body of organisms capable of causing illness.

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.

 

 

 

 

 

 

 

 

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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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Changes on the Horizon

Employment law changes are afoot… Recently, Labour Minister Kate Wilkinson announced a number of changes to the Employment Relations Act 2000 (ERA), particularly with regards to collective agreements; the secret ballot member’s Bill also received the Royal assent on 14 May. The nuts and bolts of both are outlined below.

Secret Ballots for Strikes

Full name “Employment Relations (Workers’ Secret Ballot for Strikes) Amendment Bill 2010

  • WHO – Unions and their members of essential and non-essential industries.
  • WHAT– passed by Parliament by one vote, will require a secret ballot before a strike action can take place. A simple majority (of those entitled to vote who do vote) must agree to strike. If not it will be an unlawful strike under s86.
  • UNLESS- a strike on health and safety grounds (lawful under s84)
  • WHEN- 12 month lead in time
  • WHY-  to ensure that a strike is the actually wanted by  a majority of the union members

Extension of Flexible Hours

  • Currently the right to request flexible working hours only available to caregivers, and only then after six months of employment.
  • Wilkinson proposes “ extending the right to request flexible working arrangements to all workers, right from their first day on the job”

Removing the “30 day rule”

  •  Currently employers must automatically place new employees under the terms of any applicable collective agreement for the first 30 days of employment.
  • WHY? Employers with collective agreements will be able to bargain with/ offer new (non-union member) employees their standard individual employment agreement at the start of employment. Arguably, this new possibilities with trial periods, which have previously been difficult as after 30 days a new employee is no longer “new” under the legislation and therefore cannot be placed on trial period.

Mandatory Notice of Strike/ Lock out

  • Currently – written notice of a strike or lockout is only required where “essential services” are involved.
  • WHAT- Unions and employers of all industries will have to provide notice.
  • WHY? More details will be provided in respect of the period of notice required etc but most likely aimed at “lightning strikes” without any/much prior notice.

Employers can opt out of MECA negotiations

  • WHAT “multi-employer collective agreements” s31
  • Currently employers are required to bargain with competitors and competitors’ employees when bargaining for a MECA.

Removal of the requirement to conclude bargaining

  • Currently As part of the requirement of “good faith” Employers are required (Under s33)  to conclude bargaining unless there is a “genuine reason” to not do so.
  • WHAT This proposed will repeal amendments made in 2004, while good faith remains, requirement to conclude will not.
  • This has been controversial as many have questioned at what point ‘good faith’ will be deemed to be discharged.

Allowing Partial Pay Reductions for Partial Strikes

  • WHAT Currently, union members can ‘partially strike’ ‘go slow’ eg not answer emails/ calls yet maintain full-pay
  • WHY Reduce the incidence of tactical ‘partial striking’ causing disturbance without any individual loss. In such situations, employers have wondered whether they can deduct partial pay it is hoped that this will reduce confusion and align NZ law with other jurisdictions.

Taking away Unions 20 days “Head-Start”

  •  WHAT- Employers will be able to initiate bargaining at the same time as unions
  • Currently  Employers cannot start bargaining until 40 days before expiry of the CEA whereas unions are entitled to start 60 days before expiry, effectively giving unions a 20 day “headstart” when initiating collective bargaining.

 

See press releases below :

http://www.beehive.govt.nz/release/improvements-employment-law-announced

http://www.beehive.govt.nz/release/minister-welcomes-passing-secret-ballot-bill

http://www.katewilkinson.co.nz/index.php?/archives/385-Improvements-to-employment-law-announced.html

TESSA KATE HOGG 28/08/2012

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“Don’t F****** Bother, I Quit!”

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

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Sweet Beats and Dot.Com Antics, Six of the Best on Youtube

Mondays.. they aren’t much fun, so we’re chucking a bit of dot-com.edy your way.


For those of you not up with the play, Kim Dotcom, alleged internet pirate and New Zealand resident, was arrested at his multi-million dollar mansion North of Auckland’s in January 2012 at the request of the US government. He and his three co-accused, are currently facing extradition from NZ to the US due to Megaupload.com, a file-sharing website that the German billionaire founded which is at the centre of a US-led global internet piracy case.

If you want to check out the Three-Strikes Law and what Dot-com has to do with you.. take a squizz at our March article at https://employmentlawexperts.wordpress.com/2012/03/28/dotcom-dilemmas-in-your-workplace-4/.

Otherwise, enjoy the escapades of the larger than life internet mogul at the centre of a mammoth legal battle. Love or hate him, you can’t deny his entertainment value.

TESSA KATE HOGG 23/07/2012

1. Phat beats.. feat. Kanye West,Sean Combs, will.i.am, Jamie Foxx, Alicia Keys, Snoop Dogg, Serena Williams and Kim Kardashian

2. “Mr President”- First day.. 200,000 hits

3. Controversial $500,000 Auckland Fireworks Display

4. Chatting to Campbell

5. Gamer

6. Prankster

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IN THE PIPELINE…

Payroll Practitioners Association Conference 2012

 Last week Tess and Barbara presented our “Termination, Technology and Tigers” Presentation to the fifth annual payroll PPA conference. We’re in the process of uploading this presentation in video form, but until then here’s a few snippets from the conference that might be useful.

 IN THE PIPELINE

 

 The “Monday-ising Bill” 

Also goes by the more lofty title of… Full recognition of Waitangi Day and Anzac day Amendment Bill 2012 This seeks to reflect the growing importance of Waitangi day and Anzac day by “Monday-ising” these days if they fall on a weekend. It is noted, however, that this won’t happen with either of the holidays until 2015,  so there is no major rush on this one.. The estimated cost has also been highlighted by John Key as weighing against the bill

“It’s about 400 million if it falls over the weekend for both of them. It’s likely to affect 1.4 million New Zealanders and the recommendation from the Department of Labour is to not Monday-ise those holidays”.

 

 

Who Will be Left Holding the Baby? “Six Months’ Paid Leave” Bill

The Labour introduced “Parental Leave and Employment Protection  Amendment Bill 2012″ is pretty self-explanatory, seeking to extend paid parental leave from 14 to 26 weeks (six months) to put New Zealand in line with other developed countries. The major opposition for this Bill is, again, financial and National has already indicated it would not be behind it after Kate Wilkinson, the Minister of Labour, labelled the increase, costing an estimated $150 million ”simply unaffordable”. The Bill attempts to address the economic slump with a little by little approach, increasing the leave by four weeks each year until 2014 when the Government claims its books will be back in surplus, but it faces an uphill battle and Bill English has made clear the Government’s intention to veto the legislation stating:

  “The reason for the veto is just the matter of prudent management and orderly government.”

However, New Zealand’s low standing in the OECD ranks is indisputable as are the benefits to society of well-adjusted children and working mothers who are ready to re-enter the workplace. One thing is for sure, this one will cause a stir..

 

 

A Raft of Employment Changes..

 A raft of changes received Cabinet approval on 14 May 2012.  These are mainly a reflection of rumblings   earlier in the year of changes to both collective bargaining and the right to request flexible working hours .

There are also two new changes: the first requires unions and employers to provide notice of a strike or lock out and the other gives employers the right to initiate collective bargaining at the same time as unions rather than allowing the unions their current 20 day “headstart”. However, there is no bill yet, so the full force of the changes remains to be seen… We will keep you posted as this is expected to go before Parliament this year.

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NINETY DAY TRIAL PERIODS IN A NUTSHELL

A BREAKDOWN ON THE LAW AND HOW IT APPLIES TO YOU

The logistics and legal jargon of 90 day trial periods may seem a bit of a maze but here we break down the definitions, key features and a simple checklist to guide you through. 

As of April the 1st 2011 all new employees are subject to a 90 day trial period. This allows an employer to terminate a new employment within the first 90 days without reason and without risk. However, in order to successfully use the legislation the trial periods must be in writing, agreed to in good faith and recorded at the start of the agreement. It is important that both employers and employees know how trial periods work, which not as simple as it first appears.

Basically Trial periods involve a trade off; on one hand the employee’s right to challenge unfair dismissal on the other an employer’s freedom in drafting the terms of their employment agreements.

The law is set out in s67A and B of the act. Its limits are currently being thrashed out in the courtroom in a series of cases: Smith v Stokes, Parkes v Squires Manufacturing Ltd, Blackmore v Honnick Properties Ltd. In all cases the courts are making it loud and clear that if the law isn’t followed to the letter employers cannot rely on this legislation.

WHAT IS A TRIAL PROVISION ?

A trial provision is a clause in an employment agreement which provides for a trial period (ninety days or less) commencing at the beginning of the employees employment.

AN EMPLOYEE

= an employee that has NOT previously been employed by that employer

WHAT’S IN A NAME ?

Not much… as long as the description of the period and its features are accurate. In court both a “probationary period” and a “3 month trial period” has been held to be the same this as a “trial period” IF described in terms that clearly refers to the law of 90day trial periods.

TIP To avoid confusion though we advise you describe the provision in your contracts in the same terms as it is in the act, a “trial period” not exceeding 90 days.

 

COVERING YOUR BASES CHECKLIST

  1. Make sure the employee hasn’t been previously employed by the employer. (Particularly if purchasing a business with existing employees)
  2. Ensure the trial period provision is included IN WRITING in the employee’s employment agreement.
  3. This provision must state
  • For a specified period (no more than 90 days) starting at the beginning of the employees employment the employee is to serve a trial period
  • In this period the employer can dismiss the employee
  • If dismissed the employee cannot bring a Personal grievance or other legal proceedings
  1. Before the employee starts the employer MUST make sure employee…
  •  Receives a copy of the employment agreement including the written Trial Period clause
  •  Is aware of this Trial Period in the Agreement
  •  Has the opportunity to take advice
  •  Has signed the Employment Agreement
  1. An employer cannot treat an employee differently from employees without a Trial period provision
  2. An employer must act at all times in GOOD FAITH

KEY FEATURES THAT MUST BE REFERRED TO ARE…

 

THE POSSIBILITY OF DISMISSAL AND NON-ENTITLEMENT TO BRING A PERSONAL GRIEVANCE 

  • The provision will not work unless it clearly states that the employer can dismiss the employee in the first 90 days AND that there will be a non-entitlement to bring a personal grievance in those ninety days.
  • If the provision does not mention the above it is classified as a “probationary agreement” and the law relating to unjustified dismissal applies.

TIP  If you want the protection of a ninety day period you must state these elements, if not you may find yourself in hot water.

TIMING OF WRITTEN AGREEMENT

  • In Blackmore v Honnick, a previously unmentioned trial provision was inserted into the written agreement of person who had earlier been VERBALLY offered and had accepted work as an employee. The court held he was an employee already (even though he had only been employed on the basis of a verbal contract for only one hour).

TIP  Timing is crucial; the provision must be in the contract and acknowledged BEFORE the person is employed.

WHEN DOES THE NINETY DAYS START?

  • The ninety days doesn’t have to start when the agreement is signed. It can start on the day work starts if outlined in the Trial Period description as such. In such a case an employee could still bring a Personal grievance if the employer withdraws offer of employment before they start work.

TIP Be clear as to when the period starts, if you want it to start on the day the contract is signed you must say so.

STRICT INTERPRETATION

  • The court made it clear that trial periods require STRICT INTERPRETATION given that they effectively give significant advantages to an employer by removing the employer’s right to challenge unfair dismissal.
  • The courts have specifically referred to the series of steps that employers must go through in order to create a watertight 90 day trial period and the risk that is faced in trying to rely on the legislation if they didn’t follow the steps. We have turned these into a 6 point checklist for you.

TIP Cover your bases, follow the steps, check the list.

 WHAT IS GOOD FAITH??

  • Good faith is about fairness and equality; it has been referred to over and over in the courts as an important obligation that remains upon employers. It is crucial that the bargaining process is fair; an employer needs to give actual opportunity for the employee to go away and get advice. If there is pressure to sign a contract immediately this opportunity has not been given.

TIP  Do not rush the process, if you are an employer allow potential employees time to mull over the contract and seek advice. If you are the potential employee take this opportunity!

 

 


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HANG-ON, NOT HANGOVER

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.

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