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.

Health and safety

New regime started on 4 April

The new Health and Safety at Work Act 2015 came into force on Monday, 4 April. We would have to go back a long way to find a piece of legislation which has generated more anticipation and activity than this one – and rightly. It will affect every workplace and, if it does the job it is supposed to do, it will promote a much more safety-conscious culture in the boardroom and on the front-line.

There has been a lot of discussion about the changes, and there is a lot of information about them on the WorkSafe website, and on our website (links provided below). You can also contact us directly (see contact details at the end of this publication).

Infringement notices and fines

Most infringement fines for individuals are either $300 or $1,000. Company fines are either $1,500 or $6,000. The exceptions are two fines of $2,000 for individuals and $9,000 for companies – all relating to unsafe conduct around asbestos.

WorkSafe NZ

WorkSafe appeared for its annual review before the Transport and Industrial Relations Select Committee in February. It reported a “positive shift” in its efforts to improve New Zealand’s safety culture, particularly in the forestry industry. Organisationally, WorkSafe is still in a growth phase and currently has 185 inspectors.

Employment law

Employment Standards Legislation

Late changes to secure majority support for the Employment Standards Legislation Bill have strengthened the “zero hours” contracts sections in ways which may create unforeseen problems for some employers using shift work arrangements.

The Bill was split into five Acts before passage. The Employment Relations Amendment Act prohibits:

  • availability provisions unless the employment agreement specifies agreed hours of work and includes guaranteed hours within those agreed hours, and then only if they relate to a period that is in addition to those guaranteed hours and where reasonable compensation is provided for the employee needing to be available
  • cancellation of a shift without giving the employee reasonable notice (which must be specified in employment agreements) and, if notice is not given, without paying reasonable compensation, and
  • restrictions on secondary employment unless there are genuine reasons stated in the employment agreement. These might include protecting the employer’s commercially sensitive information, intellectual property, commercial reputation or preventing a conflict of interest.

Employers must keep a record of hours worked, including for salaried workers, and an employee’s agreed hours of work must be recorded in employment agreements or there must be an indication of the arrangements related to when the employee is to work.

In addition, the Parental Leave and Employment Protection Amendment Act provides for a number of extensions to paid parental leave:

  • eligibility is extended beyond the natural parents to individuals with a permanent caring role
  • primary carers of premature babies are eligible for an extra week of parental leave for each week that the child was born prematurely
  • recipients can do up to 40 hours paid work after the first 28 days of a child’s life without losing their entitlements
  • unpaid extended leave can be taken in more than one period of time (that is, not in a continuous block), but the employer and employee must reach mutual agreement about the dates of any extended leave period
  • introduces a new concept of “keeping in touch days”, which enable employees to perform limited paid work during a period of parental leave without losing their entitlements, and
  • allows employees who are not the primary carer to request “negotiated carer leave”. The process and concept are similar to flexible working arrangement requests, with the employer not bound to agree to any such requests.

The parental leave-related changes are more extensive than what many employers may appreciate. In particular, the changes introduce new definitions and triggers for parental leave that will likely necessitate significant updates to existing parental leave policies.

The other three Acts are the Holiday Amendment Act, Minimum Wage Amendment Act and Wages Protection Amendment Act.

MBIE’s dilemma – Holidays Act rewrite on the way?

The Ministry of Business, Innovation and Employment, responsible for administering the Holidays Act, has been tripped up in its application of the Act’s provisions in relation to its own staff – as have the Police.

The result may be to trigger a complete review of the Act, something that private sector employers, many of which have also had problems with the Act, have been wanting for some while.

The government has made no formal commitment yet but Finance Minister Bill English has said that the glitches are not down to incompetence but to the complexity of the Act and that some people have probably been calculating it wrong ever since it came into force in 2004.

Paid parental leave and minimum wage

Effective 1 April, paid parental leave entitlement is 18 weeks (up from 16) and the minimum wage is $15.25 an hour for adults and $12.20 an hour for starting out workers and trainees.

Minimum Wage (Contractor Remuneration) Bill

The deadline for reporting this Private Member’s Bill back to the House has been extended to 29 April. The Bill is sponsored by Labour MP David Parker.

Shop Trading Hours Amendment Bill

The report back date for this Bill is now 17 May.

Court decisions

Home detention for company director

A company director has been sentenced to four months home detention for the death of a worker who was buried alive when a trench collapsed.

The company, SteelCon Construction, was also fined $56,000 and ordered to pay reparation of $121,320.

The decision was delivered under the pre-4 April regime and reflects a multi-faceted failure to take appropriate steps to ensure the worker’s safety. But it also presages the attitudes we can expect the courts to take under the new Health and Safety at Work legislation.

Cleaner impaled on meat hook

WorkSafe has successfully sued meat company Affco with breaching the Health and Safety in Employment Act 1992 after a cleaner at its Rangiuru works was impaled by a meat hook. The District Court, in a judgment delivered last year but only just released, rejected the company’s argument that the responsibility lay with the worker as the injury would not have happened had he not been standing on a piece of equipment not intended to be stood on.

The Court was satisfied that Affco took its H&S obligations “very seriously” but found that the specific steps taken in this instance were inadequate. While the night cleaning gang received specific H&S training from time to time, neither the supervisor nor the H&S representative nor the worker in question were fully aware of all safety processes.

 Accordingly, the employer had fallen short on its duty “to ensure not just a training process, including documentation proscribing unsafe practices and mandating practical, safe procedures for staff in their workplace, but scheduled and also random monitoring to ensure full compliance by relevant employees with all health and safety obligations and requirements”.

Breach of contractual and common law obligations to an employer

The employee left a senior role at Tex Onsite Ltd to work for a competitor, Design Engineering (DE), taking with him confidential files on a USB drive. While still employed at Tex Onsite, he had been in discussions with DE and had helped it to establish a North Island office. After his resignation, he solicited several Tex Onsite clients, at least one – referred to as “Customer X” – successfully.

The Employment Relations Authority (ERA) found that Hill had breached his implied duties of fidelity and loyalty, his express duty of good faith to Tex Onsite and the confidentiality and non-solicitation clauses in his employment contract. It also found that Customer X would have remained with Tex Onsite for at least another three years had he not enticed it away.

The ERA ordered him to pay $110,058 being comprised of: $70,736 for the projected loss suffered by Tex Onsite at losing Customer X’s custom, $2,572 for the costs associated with the forensic analysis of Hill’s computer and mobile, $8,750 for management time incurred in mitigating the effects of his breaches, $10,000 in general damages, $10,000 for obstructing the ERA’s investigation and $8,000 in penalties.

Collective agreement can prefer union members

The agreement concerned is between the Northern Amalgamated Workers’ Union (AWU) and the Golden Bay Cement Company (GBC). It provides that job vacancies will first be offered to permanent GBC employees covered by the GBC/AWU collective contract.

The ERA had ruled in March last year on GBC’s application that the clause conferred an unlawful preference on AWU members and was therefore void.

The AWU challenged this ruling in the Employment Court, arguing that the provision was directed to coverage and career advancement, not to union membership. The Court accepted this argument and found that, even if the preference was union-based, it was protected by section 9(3) which specifically permits a term or condition in a collective agreement “to recognise the benefits of such an agreement and the benefits arising out of a collective relationship”.