There are some employment laws that seem to commonly trip up good employers. Employment laws should be fair, but also simple to interpret and apply. Some ideas, as a starting point for further consideration, are:
- Fixed Terms: Why can't we just agree? The requirements of section 66 of the Employment Relations Act 2000 are strict, often making it a minefield for busy employers to draft a written fixed term provision that complies. Non-compliance with the wording requirements is costly even if there are genuine reasons for the fixed term, the employee has had the opportunity to take advice and has agreed to the fixed term. Remember the Elephant Hill case where the employer had to pay nearly $20,000 in remedies and costs to the employee because the written fixed term did not comply (even though there was a genuine fixed term and the employee agreed to that)? Where an employee and employer want to agree to employment for a fixed period of time, should they just be able to agree to that?
- Trial Periods: Opt out, not in - Despite a seemingly clear provision in the Act, has compliance with it become harder than what Parliament intended? Other jurisdictions have an automatic 'grievance free period'. Particularly for SMEs, is it fairer to have an 'opt out' system where the parties can negotiate out of a trial period provision, rather than meet strict requirements to negotiate one in? By comparison, in Australia employees must automatically satisfy a minimum employment period of at least six months (12 months for employees of small employers) before they are eligible to bring an unfair dismissal claim. Some might argue that employers would take advantage of an 'opt out' system, however, our experience is that employers want trial periods to succeed and approach them in that spirit - it's not surprising that they have better things to do than hire and fire people every 90 days!
- Parental Leave: Why does an employee have to keep a secret for 14 weeks? The current law means that employees entitled to 14 weeks' Government Paid Parental Leave lose their entitlement to payment if they resign from their employment during that period. A submission to the Select Committee on the Parental Leave and Employment Protection Act (Six Months' Paid Leave) Bill recommended that employees not be disadvantaged by being upfront with their employer at the outset about their intention not to return. This means that an employer can commence a recruitment process for a permanent employee rather than a temporary employee.
- Senior Executives: Does one size fit all? New Zealand employment law takes a one size fits all approach to all employees. Whether or not this is appropriate for Senior Executives where a high level of compatibility is required, and who usually have equal bargaining strength and a high level of business acumen in negotiating terms and conditions of employment, deserves further exploration. For example, other jurisdictions take a different approach to senior employees based on their remuneration.
- Holidays Act: One simple rate for leave payments - Doesn't it make sense for employers to have one simple, easy to apply rate to determine payment for all leave? In late 2009, the employer representatives on the Ministerial Advisory Group reviewing the Holidays Act advocated for a Single Leave Rate for all types of leave. Is this a concept worth revisiting?
- Is 90 days too long? In Australia an employee has 14 days to raise an unfair dismissal claim. There is real benefit to both parties in requiring any alleged grievances to be brought to the attention of an employer sooner rather than later (whilst still allowing a claim to be brought out of time in exceptional circumstances). Perhaps more frustratingly, the current law allows an employee a period of three years to progress a personal grievance raised in time in the Employment Relations Authority or Court. That puts an employer at a real disadvantage if, two years and 364 days later, an issue they thought was dormant suddenly raises its head again. Is this fair?