WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
1 | July 2017
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.
Employment
Pay equity package
The legislation to implement the $2 billion settlement negotiated between the government and the union representing residential care workers passed in June. The 55,000 employees who are directly affected will get pay increases of 15% to 49% over the next five years but will receive no retrospective benefit as the deal is not backdated.
The Government is picking up 91% of the cost. ACC will contribute the remaining $192 million which Health Minister Jonathan Coleman concedes may be passed on through higher levies further down the track.
Non-subsidised people in aged care will also have their care costs increased by around 6% or $66 a week.
Link: Press statement
New pay equity regime
Legislation to implement the recommendations of the tripartite Joint Working Group on Pay Equity (JWG) is now being developed. This follows the completion last month of public consultations on the draft "post-TerraNova" Employment (Pay Equity and Equal Pay) Bill.
The Bill envisages a framework for the settlement of claims in which:
a ny employee may raise a claim with her employer
the employer must assess whether the claim has merit (it must relate to work predominantly done by women and there must be "reasonable grounds" to believe that the work has been historically, and continues to be, under-valued)
refusal by an employer to accept a claim can be challenged through the normal employment dispute resolution processes
if the claim is found to have merit, the parties must enter negotiations, which will involve assessing the work and agreeing on suitable comparator occupations, and
if the bargaining breaks down, there will be access to mediation, facilitation or determination by the Employment Relations Authority (ERA).
A six-year limitation period is proposed for claims.
The JWG was unable to agree on guidance for identifying appropriate bases for pay comparison and this has already emerged as a sticking point in the legislation. The draft Bill proposes a hierarchy in which comparators must be selected from within the employer's business and if not available there, then through a process of elimination from:
one or more similar businesses
the same industry or sector, and then (only if no other appropriate comparator exists), and
from a different industry or sector.
WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
The unions consider that this is too prescriptive and would be impracticable in many circumstances. Their view is that the selection of the comparator/s should be a matter for negotiation between the parties.
Document holders would be entitled to 10 days domestic violence leave each year funded by the employer and to a sympathetic response to requests for flexible working arrangements. The Bill would also include domestic violence as a hazard under the Health and Safety at Work Act.
The new Bill is expected to be passed before the 2017 general election.
A Private Member's Bill, sponsored by a Green MP, which would have required employers to identify on pay records the gender of the employee and to make the aggregated data available to employees or their representatives, failed its first reading by a single vote.
Link: Draft Bill
New claims
The PSA and E t have lodged a pay equity claim with the Employment Relations Authority for mental health support workers and the PPTA has put one up for part-time high school teachers, the majority of whom are women.
Links: PSA/E t statement, PPTA statement
Domestic Violence Victims' Protection Bill
This Private Member's Bill, promoted by Green MP Jan Logie, passed its first reading in March with unanimous support and is now before the Justice and Electoral Committee for report back by 8 September this year.
It would provide special consideration in the workplace to employees with a "domestic violence document". Such documents might include police, court or medical documentation relating to domestic violence or a report from a domestic violence support group.
BusinessNZ has submitted that the Bill should not proceed as it "creates an inherent conflict between provisions requiring the employer to support employees affected by harm caused externally to the workplace and health and safety duties requiring employers to manage the risk of harm in the workplace".
However, the Fair Work Commission in Australia, while rejecting a union proposal to provide all employees with 10 non-accumulative days of paid leave a year to attend activities related to the experience of being subjected to family and domestic violence, did find that it is "a workplace issue that requires a workplace response" and that workers should have access to unpaid leave.
Links: the Bill, BusinessNZ submission, Australian decision
OECD backs better redundancy support in New Zealand
An OECD report released in April finds that New Zealand is not doing enough to support laid-off workers to find a new job and maintain their job quality and living standards. It says that 1.1% of people made redundant in the last five years were still unemployed.
Recommendations include:
strengthening employer responsibilities by providing for a minimum statutory notice period for redundancy
contacting disadvantaged redundant workers early on, expanding employment services for better skilled workers and creating incentives for public employment agencies to assist people who are not eligible for income support
improving training guidance for redundant workers and adult workers more generally, and
2 | July 2017
WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
consider implementing an active redundancy insurance scheme which would cover all workers, replace voluntary redundancy payments and be financed through a payroll based levy.
The Government has rejected the OECD prescription as "disproportionate to the scale of the problem" and disputes the OECD's figures, saying current estimates are that only 0.18% of displaced workers are not re-employed within two years.
Greens "Budget for All Mothers"
The Green Party has released a policy package to support parents. This includes extending the $220 per week Parental Tax Credit to all families who don't get paid parental leave and increasing sick leave to 10 days a year.
Link: Policy statement
Link: Back to Work: New Zealand
Auckland Council adopts "living wage"
The Auckland Council has provided in its latest budget for the adoption of a living wage policy. This will be phased in, beginning with a minimum of $18 an hour from September and rising each year until 2019 when it will reach about $21 an hour.
Labour Party's industrial relations policy
A Labour-led Government post-election would:
b oost the minimum wage to $16.50 an hour and base future increases on the real cost of living for people on low incomes with the objective of bringing it to two thirds of the average wage over time
e xtend the living wage to all public sector employees (estimated cost $15 million)
double the number of labour inspectors
introduce negotiated Fair Pay Agreements within industries, and
retain the 90-day rule but with a new referee service to deal with claims of unjustified dismissal.
New Employment Court Chief Judge
Christina Inglis has been appointed Chief Judge of the Employment Court to replace Graeme Colgan who retires this month.
Judge Inglis has been on the Employment Court bench since 2011 and was previously a District Court Judge.
Judge Colgan takes into retirement the satisfaction of a job well done and a couple of records he was the youngest appointee to the court and leaves as its longest serving member.
Link: Policy statement
3 | July 2017
WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
Health and safety
Towards the 25% fatality and injury reduction target by 2020
WorkSafe reports that we have already surpassed the 25% by 2020 reduction goal set by the Government in 2013 for workplace deaths and are on track to achieve it for serious injuries. But we are moving in the opposite direction for incidents resulting in more than a week off work. And the evidence shows our improvement rates are slowing and that our fatality rate remains higher than Australia and the UK.
Link: WorkSafe report
H&S performance improvement toolkit
A new Workplace Health and Safety Performance Improvement Toolkit has been developed by ACC based on work conducted in conjunction with WorkSafe and the Ministry of Business, Innovation and Employment.
It comprises three elements resources, an on-site assessment and an on-line self-assessment. The first two will be released in September and the third is expected to become available in mid-2018.
The strategy is made up of 10 performance requirements organised into three core concepts leadership, worker engagement and risk management.
Link: Toolkit
New earthquake prone building framework coming
The Building (Earthquake Prone Buildings) Amendment Act setting a timeframe for strengthening seismic risk properties will come into effect on 1 July. Failure to comply will also create liability under the H&S regime, in particular the requirement to take all practical steps to ensure a safe workplace.
Link: Ministry of Business Innovation & Employment statement
Pike River families to Supreme Court
Sonya Rockhouse and Anna Osborne have been granted the right to appeal to the Supreme Court against WorkSafe's decision not to prosecute former Pike River CEO Peter Whittall.
Useful Australian guide on H&S reporting
A senior Australian academic in the area of workplace health and safety, Dr Sharron O'Neill, and a former Chair of the Safety Institute of Australia, Karen Wolfe, have produced a comprehensive guide on H&S reporting directed to business leaders and H&S managers in medium to large organisations.
The research project was sponsored, among others, by Safe Work Australia and Chartered Accountants of Australia and New Zealand. The report is very clear on the dangers of relying on LTI (Lost Time Injury) and LTIFR (Lost Time Injury Frequency Rate) data.
Instead it advocates a more forward-looking multi-dimensional framework for identifying critical risks and monitoring the implementation (lead KPIs) and effectiveness (lag KPIs) of relevant control measures.
The analysis is comprehensive, running to 80 pages.
Link: Guide
4 | July 2017
WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
5 | July 2017
Victoria agrees in principle to PCBU framework for labour hire workers
The Victorian Government has agreed in principle to adopt the Australian Model Workplace Health and Safety Law provisions relating to labour hire employees. The effect will be to ensure such workers are not exploited by bringing them under the normal PCBU duties applying to direct employees. The decision follows an inquiry last year into abuse in the sector.
Court decisions
Employment
EMPLOYERS CAN USE COURT SUPPRESSED INFORMATION WHEN RELEVANT TO THE WORKPLACE
The Supreme Court has backed earlier decisions by the Employment Court and the Court of Appeal to the effect that an employer may publish information under a suppression order where there is a direct relevance to the workplace and so long as the communication is on a need to know basis.
The case concerned a security guard at the University of Otago who pleaded guilty to charges of wilful damage and domestic violence but was discharged without conviction and had his name suppressed. A Deputy Proctor was in court when the sentence was handed down, thought it relevant to the man's employment and sought advice from the University's lawyer on whether he could tell appropriate personnel at the University. He was told yes.
Those informed were the Divisional Human Resources Manager, the security guard's immediate manager, the Vice-Chancellor, the Director of Human Resources and the Proctor.
An internal investigation was held during which the man was suspended and at the conclusion of which he was given a final warning. He brought a grievance that he had been unjustifiably disadvantaged through the University's actions.
The Supreme Court agreed with the two lower courts that the ban on publication beyond the courtroom (in the Criminal Procedure Act) was to the public at large and "does not encompass the dissemination of information to persons with a genuine need to know... where the genuineness of the need or interest is objectively established."
Pertinent in this instance was that the employee's job was to prevent on campus exactly the sort of behaviour for which he had been prosecuted.
Link: Decision
WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
6 | July 2017
MINIMUM WAGE ACT APPLIES IF ON-CALL TO REPORT TO WORK WITHIN 10 MINUTES
The ERA has found that workers on-call and required to report to work within 10 minutes of being notified qualify for the statutory minimum wage.
The case involved anaesthetic technicians employed by the South Canterbury District Health Board who were being paid an on-call allowance of $4.04 an hour, rising to $6.06 during public holidays.
The ERA found that the limited report time meant that their time on call was "less their own" and more under the control of the DHB.
The parties have been instructed to negotiate how much money is owed with leave for either to return to the Authority if agreement is not reached.
The finding is in line with the sleepover shift decision last year where a disability carer who was being paid $50 for working full overnight shifts was awarded a $35,000 pay-out by the ERA.
Link: Decision
PREVIOUS HIRE THROUGH TEMP AGENCY DOESN'T INVALIDATE 90-DAY TRIAL PERIOD
The ERA has dismissed a worker's claim that he was not a "new employee" for the purposes of the 90-day rule as he had worked for the employer before as a temp employed by a third-party labour hire agency.
The decision, which related to the particulars of the hire contract, is welcome as it means that properly set up and adhered to temporary arrangements will not preclude a 90-day trial period should the individual be subsequently employed.
However, the ERA was clear that the finding could go either way depending on the facts and will be determined on a case-by-case basis.
For completeness, we should record that the worker did succeed in his unjustified dismissal claim because, although he did not sign the employment agreement until 10 September 2015, he had accepted employment on 22 July 2015.
The offer, emailed to him in July when he was still in Australia, contained the key terms on which he would be employed, although it did not mention a 90-day trial. The man sent back his acceptance on the same day.
At that point he became "a person intending to work" under the Employment Relations Act, meaning that he now came within the "existing employee" definition under the law so could not be required to enter a probation period.
Link: Decision
Health and safety
THE PCBU'S DUTY TO CONSULT OTHER DUTY HOLDERS
Trainee and Apprentice Placement Service (TAPS), a not-for-profit organisation dedicated to helping South Australian youth into employment, has been convicted for failing to consult with other duty holders.
The specific provision, similar in the New Zealand Act, provides that where there are overlapping duties, each PCBU must, so far as is reasonably practicable, consult, cooperate and coordinate activities with other duty holders.
TAPS assigned apprentices to various host employers and was acknowledged by the South Australian Industrial Relations Court (SAIRC) to be "an exemplary employer" which sent its three field officers around each site every eight weeks.
But on the occasion in question, there were no safety measures in place and an apprentice was very badly injured when guttering being passed to him came into contact with two high voltage power lines.
WWatrckhplace
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Employment1
Health and safety
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Court decisions
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Immigration7
Contacts8
7 | July 2017
TAPS pleaded guilty and had spent significant time and around A$70,000 to support the victim and to implement tighter safety procedures. Given this, it was fined only $12,000 of a potential $100,000.
The Court noted that it was the first prosecution for this offence in South Australia.
Link: Decision
Immigration
Pay thresholds for skilled migrants
The Government is proposing remuneration thresholds for skilled migrants of: the median income (currently $48,895) for skilled jobs, and 1 .5 times that level for jobs not considered skilled but well-paid.
RECORD FINE HANDED OUT IN SOUTH AUSTRALIA
A new record fine has been handed out in Australia to Cleanaway Operations Pty Ltd which was fined AU$650,000 by the South Australian District Court after a worker was injured in a chemical fire during a production trial.
The Judge said the level of culpability was high and that she would have gone for $850,000 (from a maximum penalty of $1.5 million) but for the company's guilty plea.
The company has a turbulent history. It also holds the record, trading under a different name, for the highest fine imposed under the previous legislation and faces fines of up to AU$12 million after being charged with eight H&S breaches in relation to a fatal truck crash.
Other changes include:
a maximum duration of three years for lower skilled and lower paid Essential Skills visa holders after which a stand-down period will apply before they are eligible for another visa, and
e nsuring that the length of visas for seasonal work align with peak labour demand.
The moves are designed to allay criticisms that New Zealanders are being forced out of work by migrant workers. They are due to come into effect later this year.
Link: Statement
More seasonal workers from the Pacific
The Recognised Seasonal Employer scheme for Pacific workers is being expanded. The government has provided $10 million in funding over an initial five year period to explore sectors where it might be deployed beyond horticulture and viticulture. Opportunities for Pacific women and those in semi-skilled, higher income occupations will also be explored.
The move follows intensive lobbying from the hospitality, tourism and construction sectors on the continued necessity for access to migrant labour.
Link: Statement
WWatrckhplace
Contents
Employment1
Health and safety
4
Court decisions
5
Immigration7
Contacts8
Contacts
GARTH GALLAWAY PARTNER T: +64 3 345 9540 M: +64 27 507 5390 E: [email protected] MARIE WISKER PARTNER T: +64 9 358 9845 M: +64 27 559 8571 E: [email protected] GEOFF CARTER SPECIAL COUNSEL T: +64 3 353 0394 M: +64 27 290 5057 E: [email protected]
If you would like to be removed from the mailing list, please send us an email at [email protected] Every effort has been made to ensure accuracy in this newsletter. However, the items are necessarily generalised and readers are urged to seek specific advice on particular matters and not rely solely on this text. Chapman Tripp
8 | July 2017
