Looking ahead, looking behind

25 December 2019

David Browne2The New Zealand Law Society recently published a piece, outlining the busy legislative schedule parliament will face on its return after the holidays in 2020. Of the 20 initiatives the society reported, three are in the employment space.

As 2019 quickly draws to a close it might not be a bad idea to briefly touch on some of the key changes in employment relations in 2019, and to then look at the three employment initiatives to be carried out by government in the New Year.

2019 was a busy time for employment law and the Labour led coalition certainly set about to bring in changes to align with their stated goals to improve fairness in the workplace, deliver decent work conditions and fair wages. Many of the changes should be familiar to businesses, as they rewind the clock back to how the law was as recently as 2015.

Changes were made to facilitate the work of unions and which accentuate the role of collective agreements. To this end a union representative can now enter the workplace for specified reasons without consent, provided the employees are covered under, or bargaining towards, a collective agreement. The Active Choice form was also introduced and while the form says it’s “optional” for the employee to complete, the employer has no such discretion. Where unions are involved an employer is under a clear obligation to provide the form to any new hire within the first ten days of employment and return completed forms to the applicable union, unless the employee objects.

According to section 125 of the Employment Relations Act 2000 reinstatement is now the primary remedy where a terminated employee was successful in raising their personal grievance. A new type of Personal Grievance was also introduced by section 108A of the Employment Relations Act 2000 to support the provisions of the Domestic (Family) Violence—Victims’ Protection Act 2018. By now all employers should have a policy in place addressing how it will conduct itself when an employee is affected by domestic violence.

Set rest and meal breaks have also returned to the workplace. The minimum wage increased April this year and is expected to rise again in about four months’ time in April 2020.

Perhaps the most concerning change generally was the removal of the 90 day trial period for employers with 20 or more staff. Small to medium sized employers with fewer than 20 (19) staff can still use the trial period. The head count includes any and all categories of employees; casual, fixed term, seasonal, and full or part time when the appointment is made. Larger employers will want to consider a return to the use of probationary periods to help guide new staff during the first few months of work.

Of course, if any of the changes described above is news to a member then please contact the OSEA Legal Team to discuss.

Next year the coalition will be considering better protections for contractors; establishing a fair pay agreement system and will consider the exploitation of temporary migrant workers.

The Ministry of Business Innovation and Employment (MBIE) began looking at opportunities for strengthening rights and protections for vulnerable contractors earlier this year. Last month they released a discussion document with consultation closing in February 2020. The aim going forward is to develop a solution, which may include new law in 2020 to sort issues faced by contractors.

Similarly, the process around fair pay agreements is now complete. While no timeframe has been set we can expect the Labour led coalition to push ahead with a new approach to support both workers and employers to negotiate better minimum terms and conditions of employment across similar occupations and economic sectors. Just like some of the changes this past year, this change involves some looking ahead and looking behind to a time when a system of awards guided terms and conditions of employment and remuneration.

Proposals for change affecting the livelihood of temporary migrant workers, underpinned by research carried out by MBIE are due to be presented to Cabinet in the first few months of 2020.

These new initiatives for 2020 and more including the upcoming referendum on legalisation of Cannabis and its potential impact on the workplace will be addressed in face to face OSEA Employment Update sessions coming to your town or one near you early next year. We will be advising members of the times and locations of these in 2020. In the meantime, enjoy your holidays, and on behalf of the Legal Team at the OSEA all the best for a confident and profitable new year.

 

David Browne | Senior Solicitor/Legal Team Manager


 

Legal Team

 

David Browne | Senior Solicitor/Legal Team Manager | 03 456 1812 | 021 225 6938 | david@osea.org.nz

Adam Siwerski | Solicitor | 03 456 1809 | 021 756 809 | adam@osea.org.nz

Stu Adamson | Solicitor | 021 197 4603 | stu@osea.org.nz 

 

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