Workplace Watch is a quarterly publication tracking legislative and regulatory reform and important judicial decisions in relation to workforce and workplace law.
This edition comes out as we wait for coalition negotiations to determine the shape and colour of the next government. Chapman Tripp's analysis of what was at stake this election in the area of workplace law and immigration is available here.
Health and safety
Clarity developing around penalty levels under new H&S regime
As more sentences are handed down under the Health and Safety at Work Act (HWSA), the courts are developing a stronger view on appropriate penalty rates and sentencing guidelines.
WorkSafe has been arguing that fines should be increased substantially around eightfold from what applied under the previous legislation. But the court in WorkSafe v Budget Plastics and more recently in WorkSafe v Rangiora Carpets has not been prepared to go this far.
In WorkSafe v Rangiora Carpets, the court agreed with the defence submission that there should be six bands of culpability (WorkSafe wanted three that used the full range of the potential maximum fine) but increased the ranges at the upper ends by around $50,000.
The Judge fixed reparation at $20,000 and took a starting point for the fine of $300,000, which came down to $157,500 after deductions of 30% for mitigating factors and 20% for the guilty plea.
Rangiora argued that it had the financial capacity to pay only $75,000 but the court did not accept this.
The Judge noted that a good corporate citizen like Rangiora Carpets should not be put out of business by a single accident but said fines must "bite". The prosecution arose after a worker fell from an unconsented mezzanine floor lacking any balustrade and broke several bones.
The written decision is not yet available but Chapman Tripp attended the sentencing.
In Budget Plastics, the Judge said the company would have been fined around $275,000 but reduced this to $100,000 having accepted arguments that this was all Budget could afford to pay.
Rangiora Carpets is the first judgment to engage with what the appropriate bands should be under the new regime. While early indications are that the courts are adopting an approach that is more in line with defence submissions, we will have to await decisions in the High Court to establish real sentencing guidelines.
Link: Chapman Tripp commentary (on WorkSafe v Budget Plastics)
Wellness in the workplace survey
The annual survey sponsored by BusinessNZ and Southern Cross has found that:
average days are still higher for manual workers but are on a downward trajectory while they are rising for non-manual employees
more than 40% of staff will go to work while sick, despite clear communication to stay at home, and
Health and safety
2 | October 2017
overall stress/anxiety levels are continuing to rise (as they did in the previous two surveys, published in 2013 and 2015).
Link: Wellness in the Workplace survey, 2017
Court highly critical of last party charged in rubbish collector's death
Truck Leasing Ltd (TLL) one of four parties charged in connection with Jane Devonshire's death has been found guilty of failing to take all practicable steps to ensure a safe workplace. The company will be sentenced on 13 October.
TLL was the only party to be tried because the other three Veolia Environmental Services, which leased the faulty truck, NP Dobbe (NPD) that was responsible for maintaining it and Auckland Council as the principal contractor all entered guilty pleas.
WorkSafe tells all
WorkSafe has created a website listing all of its assessment and enforcement activities and all notifications back to 2008.
Closing the gender pay gap
The gender pay gap in the 15 years since 2001 has hovered between a high of 13.1% and a low of 2.1% and currently sits at 12%. Using research produced by the Ministry for Women, the government has released a report suggesting seven actions employers can take:
The Court said TLL seemed to regard itself as insulated from any responsibility for safety by the legal and contractual obligations on Veolia (now Onyx) and NPD. But the trucks were "obviously worn out" and the Judge had drawn "an inevitable inference" that because they were nearing the end of their useful lives, TLL had "a philosophy of altogether avoiding costs wherever possible".
He found that TLL had failed to ensure:
the brakes on the truck were safe and lawful
agreed servicing timeframes were being met
the service regime was adequate to keep the fleet operating safely and that each party understood its responsibilities
NPD staff had access to the necessary service facilities, and
NPD was undertaking repair work to an appropriate standard, and appropriately communicating outstanding safety issues to TLL and Onyx.
lead from the top make a plan analyse your data be aware of bias redesign your talent management process maximise female talent, and normalise flexible work and parental leave for men and women.
Supreme Court knocks back caregiver's appeal
The Supreme Court has found by a three/two majority that relief residential caregiver Janet Lowe was not engaged as a "homeworker" and therefore was not entitled to the statutory benefits conferred by the Employment Relations Act.
Health and safety
The decision is in line with the Employment Relations Authority and the Court of Appeal but the Employment Court took a different view, partly because Ms Lowe had been providing relief care for a long period a consideration the Court of Appeal considered was irrelevant.
It found and the Supreme Court agreed that the normal meaning of "engage" contemplated that the hirer selected the person engaged but that did not apply in this case. Under the Carer Support scheme, relief carers were engaged by the primary carer without reference to the Ministry of Health or the DHB.
Link: Supreme Court decision
Supreme Court promotes primacy of New Zealand law for conduct in New Zealand
The Supreme Court has found by unanimous judgment that Cathay Pacific pilots employed on Hong Kong based contracts can bring discrimination claims under New Zealand law.
The two pilots, challenged under the New Zealand Employment Relations Act, a provision in their contract, which allowed their employer to enforce a mandatory retirement age of 55 years.
The Employment Court held that the Employments Relations Act applied and that they could not be required to retire by reason of their age. The Court of Appeal overturned that decision, determining that Hong Kong law prevailed.
Regional youth employment strategy
A social investment approach is being applied to 5,280 unemployed youth in four regions struck by high unemployment Hawke's Bay, Northland, the Eastern Bay of Plenty and the East Coast.
The aim is to get them into jobs and to put their lives on to a more positive trajectory. The $50m funding over four years was allocated in the budget and includes $8m for initiatives directed to Mori.
Regulation of advocates?
Employment advocates may be regulated after reports of inappropriate behaviour, over-charging and abuse of `no win, no fee' arrangements.
Workplace Relations Minister Michael Woodhouse has told Newsroom Pro that the problems are confined to a "small cohort" but that he is keen to do something about it and had asked his officials to formulate some options.
The Fair Work Commission in Australia has implemented a yellow and red card system which could be implemented here but would require legislative change.
The Supreme Court adopted a very different approach. Rather than considering the jurisdiction applying to the contract, it focused on the proper ambit of both the Human Rights Act and the Employment Relations Act and found that anti-discrimination provisions in both Acts applied to conduct in New Zealand and therefore that the pilots were entitled to pursue their claims.
3 | October 2017
Health and safety
Tweaks to temporary work visas softened for "mid-skilled" migrants
The government has reduced the remuneration threshold for skilled migrants to include "semi-skilled" applicants. It will now be set at 85% of the median income (which, on current figures, produces an amount of $41,538 a year rather than $48,895 as proposed in April).
The effect is to release more workers from the three year limit and to open the possibility of permanent residency.
The change was in response to intense lobbying from employers anxious that they may no longer be able to access sufficient migrant labour.
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4 | October 2017