Workplace Watch - Issue 11, July 2016

Contents Employment law 1 Health and safety 3 Contacts 6 1 | JULY 2016 Watch W rkplace Employment Pay equity formula The joint working group set up to decide how the Equal Pay Act should be applied across comparable male-dominated and female-dominated occupations has delivered its recommendations to the government. The recommended approach sets out principles for application to the existing good faith bargaining arrangements in the Employment Relations Act (ERA). The main elements of these are: • pay equity claims can be made at any time, with the merit of the claim determined by whether the work is predominantly performed by women and may be subject to system under-valuation • employers receiving claims must immediately notify all potentially affected employees • an objective assessment of the skills, responsibilities, effort and conditions of the relevant occupation, and • rejection by an employer of the legitimacy of a claim or failure to respond within the established timeframe can be tested with the Employment Relations Authority, as can an impasse in negotiations. These changes would require amendments to the ERA. Link: Report Whoops - more holiday pay snafus The Ministry of Business, Innovation and Employment (MBIE) estimates that the total cost across the country of holiday pay errors may exceed $2 billion and affect more than 700,000 employees. Link: News report Easter Sunday trading hours legislation The Government has tabled a Supplementary Order Paper (SOP) proposing a further softening of the Shop Trading Hours Amendment Bill to get it through Parliament. The changes would clarify that all employees have the right to refuse to work on Easter Sunday and would allow local authorities to use “policies” rather than bylaws to allow trading, enabling a more surgical approach. Support for the Bill is finely balanced with the Commerce Committee split down the middle on whether it should proceed. However it passed its second reading on what is in effect a conscience vote by 62 to 59. Link: SOP 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. Contents Employment law 1 Health and safety 3 Contacts 6 2 | JULY 2016 Watch W rkplace “Kiwis first” tweak to migrant hiring regulations Employers are now required to check whether there is a New Zealander to do the job before supporting a work visa to bring in migrant labour. The changes, which came into effect in April, mean that the employer must engage with Work and Income New Zealand (WINZ) at the start of the hiring process to ensure that the vacancy cannot be filled locally. Link: Press statement Two Labour Private Members Bills hit the wall Finance Minister Bill English has finally executed his longstanding threat to use his financial veto against Labour MP Sue Moroney’s Bill to extend paid parental leave to 26 weeks. He did it after it became clear that the Bill had the votes to go all the way in the House. National considers that the fiscal implications of the extension are prohibitive. Treasury has estimated the costs at $278 million over four years. The David Parker sponsored Bill to extend the minimum wage to payments under a contract for service has been scrapped for lack of sufficient support. 90 day rule – small benefit to employers, increased uncertainty for workers A Treasury commissioned analysis by Motu Research on the effect of the 90 day trial period on firms’ hiring behaviour has found: • little impact on employers’ willingness to take on new hires (the strongest response was in the construction and wholesale trade industries where the report estimates “a weakly significant” 10.3% increase) • no evidence of an uptick for disadvantaged job seekers • no substantial increase in short-term hiring. The report concludes that the main benefit to employers is a decrease in dismissal costs but that the flip side of this is increased job insecurity for workers within the first three months of their employment. The Prime Minister has disputed the findings, saying that they do not accord with the anecdotal evidence he picks up in his travels around the country. Link: Report Trends over 30 years of labour market statistics Statistics NZ celebrated 30 years of the Household Labour Force Survey by marking key trends over the 30 year period. They are: • an increase of almost 10 percentage points in women’s participation (up from 54.7% in 1986 to 64%) • a decline in male participation (from 80.1% to 74.4%) • fewer people taking time out for child raising (13.9% from 21.1%) • fewer 15 to 19 year olds (48.7% from 70.9%) • more people over 65 (+22% from -10%). Link: Statistics NZ release Contents Employment law 1 Health and safety 3 Contacts 6 3 | JULY 2016 Watch W rkplace School slugged $182,000 for unfair dismissal After already being ordered to pay a junior teacher $85,600 for wrongful dismissal, a Hawke’s Bay school must now pay a further $96,000 toward the teacher’s legal costs. The employee lost in the Employment Relations Authority (ERA) but had the decision reversed on appeal by the Employment Court. Her claim covered both proceedings but the bulk of the award ($80,000) was for the Employment Court litigation which took seven days of hearings, nearly 1000 pages of documentation, ten witnesses and a judgment which ran to 84 pages. Link: Decision ERA orders reinstatement although worker has lost employer’s trust The ERA has ordered that a Child Youth and Family (CYF) worker in a residential youth justice centre be reinstated although he breached CYF’s zero tolerance for violence policy and had lost CYF’s confidence and trust. The ERA found that the internal inquiry which led to the sacking was not adequate although, after a police investigation, the man has been charged with assault over the incident. CYF has said it will appeal. Link: Article Costs awarded against air hostess The former Air New Zealand hostess whose bid for reinstatement failed earlier this year after the ERA found that her dismissal was justified, and whose challenge against that decision was rejected “in its entirety” by the Employment Court, has now been ordered to pay $80,000 of Air New Zealand’s costs plus $795.50 for disbursements in addition to the $8,750 already awarded against her by the ERA. Link: Article Health and safety Big bill for quarry over “preventable death” A quarry company and its director have been ordered to pay $100,000 to the family of a worker killed on the job and more than $63,000 in fines. The 24 year old father died after being thrown off a fully laden dump truck in April last year. WorkSafe said the death could have been avoided and that there were significant issues on site with vehicle maintenance, safety practices and worker training and supervision. Link: Article $95,000 against Talley’s for decapitation Talley’s Group Ltd has been ordered to pay $73,520 in fines and $21,000 in reparation to the family of a crewman who was decapitated when a broken rope snapped back in a tuna haul. The rope had broken three weeks before the accident and had been simply tied back together. Talley’s pleaded guilty to failing to take all practicable steps to ensure the safety of employees at work. The penalty has been criticised by the union as a “slap on the wrist” and “an insult to all workers”. Link: News report Contents Employment law 1 Health and safety 3 Contacts 6 4 | JULY 2016 Watch W rkplace $55,000 fine for impaled Te Puke meat worker AFFCO has been fined $30,000 and ordered to pay $25,000 to the employee who was impaled by a meat hook. In relation to the reparation, the Court accepted that the emotional and psychological effects of the incident were profound and that he had incurred financial losses of between $11,000 and $12,000. In relation to the fine, the Court judged the level of culpability at the lower end of the middle band and gave a 25% discount for mitigating factors including; the positive steps AFFCO had taken to remedy the problem, its immediate acceptance of responsibility, its cooperation with the WorkSafe investigation and the support it had offered the worker and his family. $510,000 fine in Australia for H&S breach An Australian construction company (Romanous Contractors) and its owner and sole director (Allen Romanous) were fined AU$425,000 and AU$85,500 respectively plus costs after a bricklayer fell to his death through a hole in the floor, the plywood covering for which had not been secured to the concrete slab. Mr Romanous was the site manager and was responsible for health and safety. The accident occurred after “numerous” warnings of the need to cover unguarded openings at the site. The firm stopped trading after the death and Mr Romanous told the court that he had no intention to return to the construction industry and is now in only parttime employment. The maximum penalties available were AU$1.5 million for the company and AU$300,000 for Mr Romanous. The court took into account that Mr Romanous was “generally considered to be a person of good character”, had no prior convictions, had pleaded guilty and was unlikely to re-offend as the company was likely to be wound up at the end of the proceedings. Link: Chapman Tripp commentary Big fine in Australia for PCBU over work performed by a specialist contractor John Holland Pty Ltd, engineering, contracting and service provider to major infrastructure projects, has been fined AU$130,000 for failing to meet its health and safety obligations in the construction of a superhighway in Adelaide, endangering the lives of two motorists. Both had stopped at traffic lights when a 40kg chunk of concrete drain pipe being installed on the elevated road above fell on their cars. A car window was broken but no-one was injured. The pipe broke because it was not properly supported. John Holland was working in joint venture with two other companies on the project and the JV had subcontracted the segment of work which gave rise to the accident to a specialist contractor, Lis-Con. The company was charged with: • failing to ensure that a Task Risk Assessment was produced in advance of the work being conducted, and • failing to apply the relevant JV auditing procedures (in particular, its audit procedure did not pick up that the risk associated with installing piping above a public road had not been identified by Lis-Con). The maximum penalty for each offence was AU$1.5 million. When dealt with at Magistrates Court, as in this case, it was AU$150,000. Mitigating factors that the Court took into account in sentencing were: the company’s guilty pleas and cooperation with the ComCare investigation, the John Holland Group’s significant involvement in the community, including sponsorships and donations, and the fact it had a good H&S record. Link: ComCare release Contents Employment law 1 Health and safety 3 Contacts 6 5 | JULY 2016 Watch W rkplace WorkSafe CEO Gordon MacDonald has resigned after two and a half years in the job to return to family in the UK. Safeguard State of the Nation survey A survey of nearly 800 people (391 practitioners, 247 representatives and 148 business owners/senior managers) found: • 67% agreement that work safety is taken seriously • only 42.5% agreement that the health and wellbeing of workers is taken seriously • 78% agreement that New Zealand’s H&S record is improving, and • reasonable satisfaction with WorkSafe’s performance. Asked to identify their major H&S challenge over the next year 23% chose culture; 20% dealing with contractors or other on-site PCBUs, 11.5% risk assessment, 10.5% worker participation and 4% incident reporting. Link: Survey Contents Employment law 1 Health and safety 3 Contacts 6 6 | JULY 2016 Watch W rkplace MARIE WISKER – SENIOR ASSOCIATE T: +64 9 358 9845 M: +64 27 559 8571 E: [email protected] GARTH GALLAWAY – PARTNER T: +64 3 345 9540 M: +64 27 507 5390 E: [email protected] Contacts If you would prefer to receive this newsletter by email, or 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 GEOFF CARTER – SPECIAL COUNSEL T: +64 3 353 0394 M: +64 27 290 5057 E: [email protected]