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.
ACC 5
Contacts 5
Health and safety
New health & safety regime from 4 April
The Health and Safety at Work Act will come into effect on 4 April, next year. See the link below for a description of the new regime.
Link: Chapman Tripp commentary
High risk industries
The Government has identified 57 (of 214) industries as high risk.
The criteria applied are:
- whether there is a risk of a catastrophic event causing multiple deaths
- whether an industry has a fatality rate greater than 25 per
100,000 workers
- where the serious injury rate exceeds 25 per 1000 workers, and
- where exposure to asbestos or silica is likely.
But the credibility of the list has been subject to sustained attack by the media and Opposition parties because sheep, beef and grain
farming have been judged less dangerous than worm farming, lavender
growing and mini-golf.
A $1.1 million taste of things to come?
An Australian company has been fined $1.1 million for negligence leading to a workplace death. ACT WorkSafe said the fine, which is the largest ever awarded for an H&S offence, would send “shock waves” through the industry.
Stronger penalties are provided for in the New Zealand Health and Safety at Work Act, so the Australian judgment may be a taste of things to come.
The case is also relevant to New Zealand because the Court dealt in associated proceedings with the question of who is an “officer”. It is likely that, on the same facts, a New Zealand court would have found the same way as the Australian Court.
Link: Chapman Tripp commentary
1 | SEPTEMBER 2015
Contents
Health and safety 1
Employment law 2
Court decisions 3
Immigration 4
ACC 5
Contacts 5
Employment law
Easter Sunday shopping
The Government will introduce legislation to grant local authorities a limited power to create by-laws which would allow shops to open on Easter Sunday in specific geographic areas, but not on an industry basis. Where trading is allowed, businesses will have the option of whether to open and workers (at least ostensibly) the ability to refuse to work (which right will also be extended to staff in garden centres).
The Act is expected to come into force in the first half of 2016, with trading likely to begin in Easter 2017.
Link: Minister’s statement
Employment Standards Legislation Bill
This is an omnibus bill that extends paid parental leave, implements the curbs the Government has announced to zero hours contracts and provides for stronger enforcement of minimum employment standards.
The Bill will extend paid parental leave to eligible parents of pre-term babies, primary carers, seasonal or casual workers and people who have recently changed jobs. The threshold for extended leave will
be widened to people who have worked only six months (it is
12 currently). And persons on parental leave will be able, 28 days after the birth of the child, to return to work for a team meeting, refresher course or similar purpose to a maximum of 40 hours without losing their parental leave entitlement.
The zero hours contract provisions provide that employers must commit to a minimum number of hours if employees are expected to be on call. An employer will not be able to cancel a shift or send an employee home early without either giving reasonable notice or paying
compensation, and unreasonable restrictions on secondary employment will be unenforceable.
In relation to enforcement, employers will be required to record both hours worked per day and the pay for those hours. This requirement would create a significant obligation on some employers (for example those who employ on salary without recording hours and those who run weekend and shift work) and may be a matter to make submissions
on. Failure to comply could result in an infringement notice and a fine of $1,000.
WorkSafe inspectors will also have powers to apply for court orders in the event of a serious breach of minimum employment standards.
These include declarations, compensation and banning orders and penalties of up to $50,000 for an individual and, for a body corporate, the greater of $100,000 or three times the financial gain made from the breach.
The Bill will be split into five bills in the committal stages after it has been returned from select committee. Submissions close on
6 October 2015.
Although most unions have said that the Bill does not go far enough, the Amalgamated Workers’ Union, representing farmworkers, has said that the obligation to compensate the employee when shifts are cancelled could cost jobs in weather-dependent industries.
Links: The Bill and Chapman Tripp commentary on the zero hour contracts provisions
Labour’s parental leave bill back in play
Labour MP Sue Moroney’s bill to extend paid parental leave to 26 weeks has passed its first reading and been referred to select committee. But National has said that it will use its financial veto to defeat it if necessary.
- | SEPTEMBER 2015
Contents
Health and safety 1
Employment law 2
Court decisions 3
Immigration 4
ACC 5
Contacts 5
Minimum wage bill through to select committee
Labour MP David Parker’s bill to extend the Minimum Wage Act to payments under a contract for services – e.g. pamphlet deliveries – has passed its first reading and been referred to the Transport and Industrial Relations Select Committee.
A gathering wave behind pay equity?
Midwives and education support staff (who work with pre-school high needs children) have joined aged care workers in seeking pay equity.
The Court of Appeal found last year in Terranova Homes & Care Limited v Service and Food Workers Union that the Equal Pay Act 1972 anticipated making wage comparisons across employers and occupations and sent the case back to the Employment Court with
instructions that the Court develop some general principles to guide the
comparison. We are still waiting for that to be heard.
The education support staff are following the same legal course as the aged care workers. But the midwives, who are contractors rather than employees, are relying on the non-discrimination provisions in the Bill of Rights Act and are seeking a judicial review in the High Court of their fees, terms and conditions, issued under the New Zealand Public Health and Disability Act 2000.
The gathering wave of cases will be worrying the Government, not only because of the obvious fiscal implications if the plaintiffs are ultimately successful, but also because of the potential “contagion effect” and the difficult political issues involved.
Court decisions
Double jeopardy for workplace accident?
A Christchurch manufacturer has incurred penalties from two different authorities under two different laws – the Employment Relations Act and the Health and Safety in Employment Act – for the same workplace accident.
Link: Chapman Tripp commentary
Protection against discrimination for union/H&S representatives
The Court of Appeal has remitted back to the Employment Court a claim of unjustified dismissal by C3 Limited against Andy Nathan, a stevedore, on the basis of his status as a union delegate and a health and safety representative.
Mr Nathan and another full-time employee (Mr Nee Nee) who was also a union and H&S rep, together with two casual employees of C3,
engaged in a drinking session with two others during which 66 bottles of beer were drunk on site in defiance of the company’s liquor ban.
Only Mr Nathan and Mr Nee Nee were dismissed as a result of the incident and in the letter of termination, C3 referred to their union and H&S roles, saying they had failed to display the behaviour C3 would expect from them.
The Employment Court found against Mr Nathan, saying that C3 had behaved as a fair and reasonable employer would have done.
Mr Nathan appealed to the Court of Appeal that the Employment Court had erred in failing to consider the discrimination issue.
- | SEPTEMBER 2015
Contents
Health and safety 1
Employment law 2
Court decisions 3
Immigration 4
ACC 5
Contacts 5
The relevant sections are section 103(1) in the Employment Relations Act 2000, s 104 which explicitly disallows discrimination on the grounds of union involvement and s 107 which stipulates that this protection also extends to H&S representatives.
The Court of Appeal has ordered the Employment Court to reconsider its decision in light of these provisions. The judgment is significant given the imminent coming into effect of the Health and Safety at Work Act and the emphasis it places on workforce participation in H&S decision-making.
Link: Decision
Dredging company decision
Dredging NZ Ltd was fined $79,500 in the Auckland District Court and ordered to pay reparation of $42,200 after a worker was crushed to death between an excavator and the wall of a hopper.
The Judge rejected an argument from Dredging NZ that it should be charged in the medium range because it had bought the company only four months before the death occurred and had vendor warranties in the sale agreement to the effect that all health and safety standards were met.
The Judge took the view that Dredging NZ had “completely abdicated” its H&S responsibilities by not quickly satisfying itself after the purchase that the right safety processes were in place.
The skipper on the barge was separately fined $10,000 and ordered to pay $18,000 reparation in earlier litigation before the same Court for failing as an employee to take all practicable steps to ensure the safety of others at work.
CTU wins prosecution in case WorkSafe declined to take
The Council of Trade Unions has won a private prosecution under the
Health and Safety Act against a Tokoroa employer for the death of a worker.
The forestry company pleaded guilty last month in the Rotorua District Court. WorkSafe, had elected not to take the case for lack of sufficient evidence.
Link: Radio New Zealand report
Immigration
Welcome to NZ (outside Auckland)
Immigrants will be encouraged to locate out of Auckland through a package of measures to come into effect on 1 November. They include:
- extra bonus points for Skilled Migrants applying for residence and entrepreneurs planning to set up a business outside Auckland, and
- streamlining the labour market test to provide employers with more
certainty earlier in the visa application process.
Link: Minister’s statement
- | SEPTEMBER 2015
Contents
Health and safety 1
Employment law 2
Court decisions 3
Immigration 4
ACC 5
Contacts 5
ACC
Residual levies to cease next year
Some businesses can expect to pay lower ACC charges, and others higher, in the 2016-2017 levy year after the residual levies imposed in 1999 when ACC moved to a fully funded model are stripped from the system.
The removal reflects the fact that the scheme has now built up enough funds to meet the cost of all ongoing pre-1999 claims. It will have a mild redistributive effect because the levy will now just reflect recent injury costs, without the one third component which has gone to meet historic claims.
Link: Minister’s statement
Contacts
DOUG ALDERSLADE – PARTNER
T: +64 9 357 9002
M: +64 27 473 3698
GARTH GALLAWAY – PARTNER
T: +64 3 345 9540
M: +64 27 507 5390
E: garth.gallaw[email protected]
PHEROZE JAGOSE – PARTNER
T: +64 4 498 4954
M: +64 27 241 2999
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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
MARIE WISKER – SENIOR ASSOCIATE
T: +64 9 358 9845
M: +64 27 559 8571
E: marie.wisk[email protected]
GEOFF CARTER – SPECIAL COUNSEL
T: +64 3 353 0394
M: +64 27 290 5057
