Workplace Watch is a quarterly publication tracking legislation and regulatory reform in relation to workforce and workplace law. Our national team of employment specialists can assist you in all areas of employment law, including personal grievances, litigation, union issues (negotiations, disputes and mediations), redundancies, restructuring, senior executive employment, exit negotiations, post-employment conduct, and health and safety.

Health and safety

Corporate manslaughter may make late entry to H&S Bill

A new corporate manslaughter offence may make a late entry to the Health and Safety Reform Bill.

Justice Minister Amy Adams has made the recommendation to Workplace Relations and Safety Minister Michael Woodhouse who told TVNZ News on 22 June that no decision had yet been taken but he was not averse to the idea.

The previous Minister, Simon Bridges, had decided against it because the experience overseas was that it was hard to get a successful prosecution.

The report back of the Bill has been deferred to 24 July. This is the second deferral. The first, in response to the large number of submissions received, was from 30 March to 29 May. The reason this time is that there are concerns in the National Caucus over aspects  of the Bill.

Link: TVNZ story

Fees and penalties in the new H&S regime

The Ministry of Business, Innovation and Employment has released draft regulations on the proposed infringement notices and fees under the new health and safety regime. The consultation closed on 2 June 2015.

Link: Draft regulations

H&S attitudes and behaviours survey

A Nielsen survey conducted last year of more than 3,700 workers and 1,900 employers in the high risk agriculture, forestry, construction, manufacturing and commercial fishing sectors has found that a high priority is given to health and safety but that it could be higher. Asked what the top three considerations were for their work; one half of employers identified H&S but only one third of workers.

It also found that, while they recognised that they were in risky industries, only 17% of workers and 6% of employers thought there was at least a moderate risk of a worker/workmate sustaining a serious injury at their workplace in the next year.

Link: Survey

Six more labour inspectors for Auckland

Funding of $32 million over the next four years has been allocated in the budget to provide six more labour inspectors for the fast-growing Auckland market.

Link: Minister’s statement

Employment law

Paid parental leave

The maximum parental leave payment for both employed and self- employed rose from $504.10 a week to $516.85 on 1 July.

Link: The regulations

Minimum wage extended to contractors?

A Bill to extend the minimum wage to contracts for service (e.g. pamphlet deliveries) promoted by Labour MP David Parker has been drawn from the private members’ ballot.

Tracking equality at work

The Human Rights Commission has released research on four aspects of workforce participation – employment, pay, leadership and discrimination – together with a web-based interactive tool that allows analysis of equality over time on any one of these issues by sex, ethnicity, age and disability.

The results show that the best single indicator of success is to be a white man, although less so in the public sector where 42% of senior management and board appointments are held by women compared to under 20% in the private sector.

Link: HRC

Court decisions

Care worker decision to be appealed

The Director-General of Health has been granted leave by the Court of Appeal to appeal the Employment Court decision (reported in the March quarter edition of Workplace Watch) which found that relief care workers are employees under the Employment Relations Act.

Bad faith finding against union and workers

In August 2007, Mana Coach Services withheld pay from workers  who offered themselves for work after notice of a four hour strike was withdrawn within eight minutes of when the strike was to have taken effect, although the decision to cancel it was made early that morning.

The notice had been issued the day before and the company had made alternative arrangements – engaging casual drivers, deploying garage mechanics (who would not be expected to operate the bus ticketing system) and re-arranging or cancelling routes.

In December 2007, the Employment Relations Authority (ERA) found the workers were nevertheless entitled to be paid. In September 2008, the Employment Court reversed that decision, finding the union, in its capacity as the members’ representative, had acted in bad faith by deliberately delaying withdrawal of its cancellation notice for the purpose of maximising Mana’s loss and disruption.

In November 2011, the Court of Appeal held that the Court erred in relying on its equity and good conscience jurisdiction to disentitle the workers from payment for those hours, and referred the matter back to the Court to determine whether the workers’ vicarious bad faith alone could so disentitle them.

The Court reconsidered the matter in August 2012. Its further judgment, just released, relies on the ‘no work, no pay’ aphorism as requiring that employees at least be available to perform their work. Here, the workers knew that the work could not be provided for reasons relating to their vicarious bad faith. Thus they were not entitled to be paid.

The Court remarked that the effect of the ERA’s determination would shift significantly the balance of power in bargaining and employment relations as it would “allow the consequences to an employer of  strike action to bite, without a strike taking place and without any countervailing detriment to the employees”.

Link: Decision

Narrow win for AFFCO

The Meat Workers Union sought an interim injunction to prevent AFFCO from insisting that workers laid off at the end of the previous season sign up to new individual employment agreements (IECs) as a condition of re-employment. The terms and conditions of the IECs largely mirrored the objectives that AFFCO was trying to achieve in stalemated collective negotiations with the union. The basis of the union’s claim was that AFFCO was engaged in an unlawful lock-out.

The Employment Court accepted that the plaintiffs had an arguable  case as no notice had been given and both parties maintained for “tactical” reasons that the lock-out was unrelated to the stalled collective bargaining (a proposition of which the Court was sceptical but accepted because of the urgency of the injunction application).

However it found narrowly for AFFCO on the balance of convenience and on overall justice, given the effect on the majority of the prospective workforce which had agreed to the new IEAs and was expecting to start work next week and on the basis that the “bigger picture” – the chances of obtaining a collective agreement – would best be served if the injunction was denied.

Despite finding for AFFCO, the Court warned it that many of the terms and conditions in the IEAs were of dubious validity “and may be tested rigorously if they are applied in unmodified form and literally”.

Link: Decision

Immigration

More protections for migrant workers

Immigrant workers have stronger protections following passage of  the Immigration Amendment Bill. Penalties on exploitative employers include:

  • up to seven years in prison or a fine of $100,000 or both for exploiting temporary workers
  • up to five years in prison or $100,000 or both for exploiting legal temporary workers or unlawful workers and being reckless to their immigration status, and
  • possible deportation where the employer holds a residence visa and the offence was committed within 10 years of gaining residency.

Link: Minister’s statement

Immigration changes to support Christchurch rebuild

Three changes to the Essential Skills visa policy have been approved to help meet labour requirements for the Christchurch rebuild:

  • the maximum duration of the visas has been extended from one year to three years for applications received between July 2015 and December 2016
  • holders working in Canterbury will be able to change employers within the same occupation without applying for a Variation of Conditions, and
  • an accreditation scheme will be introduced for labour hire companies supplying the construction sector in Canterbury.

Link: Minister’s statement

ACC

ACC (Financial Responsibility and Transparency) Amendment Bill

This Bill, introduced on 11 May, will insert three principles to guide levy setting:

  • that a full funding approach should continue, supported by further guidance for levy decisions
  • that levy rates should remain “reasonably stable and predictable”, and
  • that each of the scheme’s levied accounts must be solvent over the long term.

Provision is also made for the Minister to issue a funding policy statement within three months of the Bill coming into force.

Link: Bill digest