With impending employment law changes, the election and the World Cup planned for this year, employers are faced with a number of issues worthy of consideration. Further, the upward trend of social media use is likely to continue, bringing with it associated benefits and challenges.

Employment law changes

Employers are preparing for upcoming changes to the Employment Relations Act 2000 (ERA) and Holidays Act 2003 adopted late last year. Most of the changes are due to come into force on 1 April 2011.

Specifically, employers may want to consider:

Trial periods

  • Introducing a trial period provision in bargaining for individual terms and conditions of employment for new employees. Importantly, for a trial period to be effective, there must be written agreement between the parties in place before the employment commences. An employer considering the use of trial periods would be prudent to review any policies that could be affected (such as disciplinary, misconduct and poor performance policies), together with the terms of any applicable collective employment agreement. For new employees whose work falls within the coverage clause of a collective agreement, a trial period will not be effective (notwithstanding the employee's agreement) if it is inconsistent with an applicable collective agreement term.

Union access

  • Reviewing collective employment agreement terms on access (if any), and training staff on the new statutory processes and obligations required in relation to access requests.

Communication during collective bargaining

  • Agreeing with unions as an express term of a bargaining process agreement (BPA) the right for the employer periodically to communicate directly with employees. The new law expressly permits an employer to communicate directly with employees during bargaining for a collective agreement, subject to the overriding duty of good faith. Such communications could include company updates on and explanation of the current bargaining position.

Holidays and sickness

  • Developing a strategy and formal policy in anticipation of employee requests to cash up annual leave and/or transfer public holidays. For example, what would be the company's response to an employee's request to donate "cashed up" leave to a colleague in need? It is permissible under the new law for employers to adopt a policy preventing consideration of requests to cash up leave or transfer public holidays. Employers will want to weigh up possible advantages such as flexibility and increased staff morale in allowing these options against likely disadvantages. Increased costs, (potentially an additional week's pay for each employee and administration costs), and additional administration and record keeping obligations are among possible negative implications.
  • Reviewing employment agreements, policies and payroll systems in light of the new "average daily pay" (ADP) rate. ADP, which is based on an averaging 52 week formula, may be used in certain circumstances as an alternative to "relevant daily pay" for public holidays, alternative holidays, sick leave and bereavement leave.
  • Reviewing any discretionary incentive schemes in view of the new statutory definition of "discretionary payment" under the Holidays Amendment Act. A discretionary payment as defined should not form part of an employee's holiday pay. However, the definition expressly excludes a payment which an employer is "bound" to make under an employment agreement even where the employer has discretion to determine the amount. Such a payment will not qualify as "discretionary" under the new provisions and thus will form part of holiday pay.
  • Updating policy and employment agreement terms on requirements for proof of sickness/injury and when an alternative holiday should be taken.

Also in the pipeline is a Bill legislating for the public holidays for Waitangi Day and ANZAC Day to be taken on a Monday where they fall over a weekend. Both public holidays will be lost this year - Waitangi Day falls on a Sunday and ANZAC Day is the same day as Easter Monday.

Possible changes following the election

The ERA and Holidays Amendment Acts enact most proposals contained in National's pre-election employment manifesto. One other matter identified as being on the "wish list" for reform was alternative collective bargaining without unions. Should National secure a second term, further changes are anticipated to address this issue. This could mean new rights for workers to bargain collectively with their employer without having to belong to a union.

Absenteeism during the Rugby World Cup?

Employers may want to review, or consider implementing, a staff absence policy to help manage potential absenteeism over the World Cup period.

Possible options include allowing employees to work flexible hours and/or take unpaid leave to watch games; screening games in-house; or permitting internet access during working hours to track games. The terms of such options would need to be clear, including a statement that any conduct falling outside the guidelines could result in disciplinary action.

Employers potentially most affected by absenteeism during this time, such as hospitality providers, may want to consider possible incentive or bonus schemes rewarding full attendance during the tournament period.

In any event, it would be prudent in preparation for the tournament to raise employees' awareness of company policy on absenteeism and possible disciplinary consequences of a breach. This could include a written reminder to employees expressly stating that it is prohibited to use sick leave or otherwise be absent without proper authorisation to attend or watch games.

Social media use on the up

Increasingly, employers and employees are turning to social networking sites. From a business perspective, there has been an exponential proliferation of information available on the internet. Equally, personal use continues to rise. However, inappropriate use of social media by employees can disrupt work, and even damage the employment relationship – specifically the mutual obligation of trust and confidence between employer and employee. Further, there is an apparent rise in employees using social media and portable devices to steal confidential business information, perhaps to take to a competitor.

Employees are also asking for personal devices to be connected to corporate networks or to use them for work. Such personal connections risk possible loss of control over company information, security and privacy issues.

Practical steps for employers include:

  • Introducing workplace policies to set appropriate standards for employees' use of social media, the internet and personal devices at or for work (where appropriate). If personal devices are allowed, there should be an express right of access to/collection of company information when required, such as in the event of investigations and litigation requiring discovery). General policies on internet and email use should also be reviewed;
  • re-evaluating proprietary information which may be accessible via the internet and possible ways of protecting it;
  • training HR and recruitment staff on standards and procedures required in relation to conducting social media checks on individuals, defining information that may (and may not) be used for these purposes.