Category: Workplace Law

The Government recently announced its Wellbeing Budget for 2019 and confirmed the growing mental health crisis in New Zealand.  The importance of this issue and how we can support those affected is an ongoing conversation that has become very relevant in the workplace, and was recently considered in the Employment Court.

An employer has to take all steps reasonably practicable to provide a safe workplace, and a hazard is defined under the Health and Safety at Work Act 2015 as including a person’s behaviour.  Employers can no longer ignore the crisis or say it is none of their business – in fact, it is quite the opposite.  The Court has confirmed that an employer has to take active steps to investigate, identify, and clarify mental health issues and risks in the workplace, and look to provide ways to reduce those issues and risks, in order to satisfy its duty of providing a safe workplace.

The case of FGH v RST

Ms F began working for RST in 2012 and over the years there were some performance concerns with her.  However, in May 2015 she told RST that she was suffering from anxiety, and in July 2015 told them she had been diagnosed with attention deficit disorder.

In October 2015 RST started a performance management plan with Ms F following various issues.  By December, her behaviour had started to drastically change, including having outbursts and behaving aggressively toward RST.  In February 2016 after Ms F had another outburst at work, RST decided to commence a disciplinary process.

Ms F raised a personal grievance against RST, claiming she had been unjustifiably disadvantaged by RST’s failure to provide a safe work environment.

What did the Employment Court say?

RST argued it had accommodated Ms F’s mental health conditions to quite a degree through the performance and disciplinary processes, including:

• Giving her additional time to respond to its concerns.
• Providing her with discussion points for meetings.
• Rescheduling meetings to suit her.
• Offering her support through EAP Services Limited (the employee assistance counselling programme provider), coaching support, flexibility to where she worked (change of desk).

The Court agreed that the steps taken were a genuine and reasonable attempt by RST to reduce stress, however, they were not enough to discharge its obligations to provide safe and healthy workplace.

The Court said Ms F’s anxiety had worsened as a result of the performance processes.  RST felt her behaviour was because she did not want to be performance managed, but the Court said it was actually a symptom of her known mental health conditions.

The Court suggested RST should have focused on managing Ms F’s conditions, rather than the performance processes it was running and that if it had it done this, the misconduct may never have arisen.  The Court said:

• It was foreseeable that continuing with formal performance and disciplinary processes following Ms F’s outbursts would result in negative reactions because of her known mental health conditions.  These processes should not have continued until after a mental health assessment was done; and
• A fair and reasonable employer should have requested further medical information and assisted the employee in obtaining the requested information.  RST did not take proper steps to try and obtain its own medical evidence to assess and manage the situation or carry out sufficient investigation.

The Court concluded Ms F had been unjustifiably disadvantaged in her employment.

What does this mean for employers?

Where an issue of mental health arises in the workplace, an employer is obliged to investigate, identify and clarify the issues and risks, and look to reduce those in order for an employee to remain safe in the workplace.

The employer in FGH v RST followed a tight process from an employment law perspective, however, the Court was clear that obligations increase where an employer is aware of an employee’s mental health condition, and that was where the focus should have been first.

The findings in FGH v RST set a clear precedent that employers must:

• Take preventative measures in the workplace to address mental health conditions; and
• Respond appropriately where employees may be suffering from mental health conditions.

There is no set formula for employers to follow when dealing with mental health in the workplace.  Employers need to be adaptive, open-minded and prepared to spend the time ensuring its workplace is taking a proactive approach to dealing with mental health in the workplace.

Simple first steps could include assessing and adapting current leadership structures and styles, promotion of exercise through work sports teams, introduction of a mental health policy and training in order to start the open kōrero within your business, and continual building of trust and confidence with your employees.  Remember, trust and confidence can rarely be built over emails and phone calls – communicate kanohi ki te kanohi (face to face) wherever possible to ensure you remain in touch and aware of what is going on in your workplace.

Most employers genuinely want to help their employees and do the right thing in these situations, but sometimes just do not know what to do.  A holistic approach underpinned by manaakitanga (caring for others) that focuses on proactive prevention and fair responses will go a long way to improve workplace wellness.

If you would like further information please contact Renika Siciliano on 07 958 7429.

Further to our earlier pānui in March, a raft of further changes to the Employment Relations Act 2000 (“the Act”) come into effect from 6 May 2019.  Our advice is to get on top of these changes early, assessing how they may affect the day-to-day operational running of your business or policies you have in place.  We summarise some of the key changes below.

90 day trial periods

The days of relying on a valid 90 day trial period to dismiss an employee with full immunity from a personal grievance for unjustified dismissal are over for many employers.  Only those who employ fewer than 20 employees at the time of hiring them (referred to through the Act as a “small-to-medium-sized employer”) will be able to use a 90 day trial period from 6 May.

Employers who employ 20 or more staff will no longer be able to include 90 day trial period clauses in employment agreements, and will be required to follow proper processes should they wish to dismiss the employee in those early stages of employment.  This exposes them to the risk of a personal grievance for unjustified dismissal which they will no longer be protected against.

For those unable to use 90 day trial periods moving forward we recommend upskilling management in how to handle performance management, as well as reviewing your current hiring procedures.  These employers may wish to include a “Probationary Period” in employment agreements for new staff as a way of managing performance from the outset and allowing a proper review at the end of the first three months of employment.  However, employers should proceed with caution as probationary periods can be particularly onerous on management and leave a lot of room for error, so may be better used on a case by case basis.

“Set” rest and meal breaks

Rather than allowing for rest and meal breaks that are “reasonable” for rest and recovery, an employer will have a duty to provide specific and set rest and meal breaks in accordance with the new laws.

The Act sets out how many breaks, as well as their duration, that an employee will be entitled to in any given work period.  For example, if an employee works more than 6 hours, but not more than 8 hours in any given day, they must be provided with at least two 10 minute rest breaks (paid) and one 30 minute meal break (unpaid).

The changes encourage agreement between the parties as to exactly when those breaks are taken, but failing agreement, indicates at what stage in the day those breaks should be taken “as far as is reasonable and practicable”.  This suggests that some flexibility in when the breaks occur will be allowed.  Employers may want to cover any flexibility that could occur in rest and meal breaks in the employee’s individual employment agreement so that expectations are clear from the outset.

Collective bargaining and unions

Changes have also been made in regards to Collective Bargaining and Union involvement in the workplace.

Among those changes, the Act sets out processes to be followed when a Union requests the employer provide information about the Union roles and functions to prospective new employees, and only allows limited reasons for such a request to be declined.  It also sets out rules about what terms new employees can be hired on where there is an operative collective agreement, but the employee opts for an individual employment agreement.

The Act then looks to provide some clarity around the already quite rigid process of collective bargaining, such as when the parties may initiate bargaining, how the parties should proceed when a matter is at deadlock in negotiations and reiteration of the expectations for the parties to act in good faith and conclude a collective agreement at the end of bargaining.

Restructuring in the workplace and vulnerable employees

The changes see additional definitions for terms used in relation to a restructure as well as clear examples of what constitutes contracting in, contracting out and subsequent contracting.

Employers need to be aware that when dealing with “vulnerable employees” under the Act, they must give clear notice to the employee of their right to make an election to transfer to the new employer, or not.  This new requirement provides that at least 20 days before a restructure takes effect, an employer must provide employees with the relevant information and inform them of their right of election.

Before making any structural changes in the workplace which may adversely affect employees, employers should make sure they are familiar with all of their obligations under the Act.

Next steps for employers

Employers are going to need to take a deeper look into how they are operating in order to incorporate these changes into their workplace.  Reviewing current employment agreements and policies are the first step for employers to ensure they are in line with the law.  To compliment updated documentation, however, we suggest a second step for employers as taking a more proactive approach in the day-to-day running of their workplace to give effect to the changes that continue to arise in the employment realm.

If you would like further information please contact Renika Siciliano on 07 958 7429.

As of 1 April 2019 employers need to be aware of several changes to minimum employment standards.

Minimum wage

The minimum wage will increase to $17.70.  Employers can expect to see further rises in the minimum wage rates following the Government’s commitment to increasing the minimum wage to $20 by 2021.

Training and starting-out minimum wage rates have increased to $14.16 per hour, but can only be used in specific situations based on an employee’s age and whether they have worked six continuous months with the employer.

Domestic violence leave

The Domestic Violence – Victims’ Protection Bill will come into effect creating a new form of leave for employees affected by domestice violence and the ability to negotiate flexible working arrangements.

Employees affected by domestic violence will be entitled to up to 10 days of paid leave per year.  Entitlement will arise and the leave can be taken similar to the existing sick and bereavement leave provisions.

Employees affected by domestic leave will be able to request short-term variations to their working arrangements, for example hours of work, location and/or duties.  Employers will be required to respond urgently to the request (within 10 working days) and are allowed to ask for proof the employee is affected by domestic violence (though we envisage this will be a tricky area to navigate given the sensitivity of the issues).

An employer will only be entitled to refuse the request if the employee fails to provide the proof on request, or if the request cannot be reasonably accommodated.  A non-exhaustive list of reasons the request cannot be accommodated is set out in the legislation which includes the employer’s inability to reorganise work among existing staff or to recruit additional staff, the change having detrimental impacts of quality and performance of work, or the cost being too burdensome on the employer.

More changes to come in May

From 6 May 2019 more changes will come into effect, including:

• Changes to the 90 day trial periods and who can use them.
• The ability to have set rest and meal breaks will be restored.
• Employer obligations will increase in respect of Collective Employment Agreements and how they employ new staff.
• Employers will be required to allow union representatives reasonable time to perform their union duties and pay them on the same as their ordinary working rate.

These changes will impact on and affect the way employers are operating their business.  This serves as a timely reminder for employers to check their employment agreements are up to date as a good starting point to accommodate these changes.

If you would like further information please contact Renika Siciliano on 07 958 7429.

Introduction

The Employment Relations Amendment Bill was introduced into Parliament on 26 April 2013 and passed its first reading on 5 June 2013. The Bill introduces many changes to the Employment Relations Act 2000 relating to the following key areas:

• Restructuring and the Privacy Act
• Collective Bargaining
• Trial periods
• Flexible working hours
• Part 6A (vulnerable workers)
• Rest and meal breaks;
• Strikes and lockouts
• Employment Relations Authority decisions

Restructuring and the Privacy Act

Following the recent Employment Court decisions, some uncertainty arose in terms of what information employers are required to release to those interviewed for prospective jobs. The Amendment Bill provides a specific list of information which an employer does not have to disclose particularly in relation to confidential information.

Collective bargaining

Concluding bargaining

Currently the parties in employment relationships are required to conclude bargaining on collective employment agreements unless there is a real reason not to do so. In addition to this, the parties are also required to continue bargaining even though when deadlock has been reached. The Amendment Bill seeks to remove the requirement to continue bargaining when deadlock has been reached and repeals the section which requires parties to conclude a collective agreement. The Amendment Bill emphasises good faith negotiations rather than negotiations merely for statutory requirements.

Initiation of bargaining timeframes

The current law allows for different time periods between employer and employee for initiating bargaining when renewing existing collective agreements. The Amendment Bill seeks to align both employer and employee time limits for the various steps that are to taken.

Opting out of multi-employer bargaining

Under the Amendment Bill, multi-employer bargaining may be opted out of within a ten day period. This must be by notice and must be served on all parties without going through the current provisions and steps for bargaining to reach settlement.

Ending collective bargaining

Currently the Act assumes that parties will continue to bargain until settlement is reached. The Amendment Bill seeks to allow parties who are no longer interested in bargaining to ask the Employment Relations Authority to declare bargaining as concluded.

Offering the collective agreement to new employees

Currently when a new employee begins employment where collective agreements are available, the employee has benefit of the terms and conditions under the collective agreement (for the first 30 days) and any specific individual terms negotiated. The Amendment Bill removes the automatic adoption to the collective agreement terms and conditions availability but rather allows the employer to inform the employee about these should they wish to be part of it.

Flexible working

Reasons for requests

Currently employees have a statutory right to request flexible working hours when three criteria apply (care of another person; six months service to the employer and the employee has not made a request in the last twelve months). The Bill removes these criteria allowing any employee to make a request at any time.

Timing of response by employer

Currently an employer is required to respond within three months. Should the Bill be passed, employers must respond within one month.

Part 6A

Part 6A was inserted in 2004 and substituted in 2006 as a protection for employees (typically in service industries) who have been affected by a restructure followed by the same or a similar service being done by another employer. The Bill allows for more certainty and security for “vulnerable workers” in terms of the time by which employees must choose to transfer by, liability for transferring service-related entitlements, change of pay rates and conditions, and the transfer of information.

Meal and rest breaks

The proposed amendments would take away the stringent regime for meal breaks allowing employees to take breaks when reasonable and necessary in the course of work period. Meal and rest breaks must provide the employee with reasonable opportunity to rest, attend to personal matters, for refreshments and be appropriate for the duration of the work period.

Strikes and lockouts

The Bill allows employers to deduct pay for a partial strike by employees to the value of productivity that was lost during the strike time (apart from a lawful partial strike on health and safety grounds). In order for the strike to adhere to statutory requirements, the employer must be given notice, following which the employee must be notified of any deductions that are to be made. Minimum wage provisions will not apply to the extent that the person is paid less than the minimum wage because of a deduction due to a partial strike.

Employment Relations Authority decisions

The Bill will require the Authority to deliver a written decision within three months of the investigation meeting as well as giving an initial indication of what the findings of the ERA might be.

How this will affect you

The Bill sets out a number of potential changes to the current Act. It is important to note that these changes are not in effect yet, and there are a number of steps in the process before any of these changes can take effect. There have been no dates indicated at this stage.

If you would like further information please contact Renika Siciliano on 07 958 7429.