Employers Running Out of Time to Comply with Law Changes-Employment Lawyer Auckland-Dukesons Business Law

March 2017

This Blog isn't legal advice – if you need legal advice on any employment law issue or on any business law or commercial law issue, please contact me. I'm a business lawyer in Auckland who provides advice on company law issues and on a wide range of business law or commercial law issues.

Employers have less than one month to update their existing employment agreement templates to ensure compliance by 1st April with recent changes to the Employment Relations Act 2000 (ERA). Employers who rely on out dated agreements could not only find that some of their provisions may be unenforceable but that they may also face penalties.

Ideally, employers should get existing employees to agree to include the changes in their agreements. Existing employees can’t be required to agree to changes but there’s no obvious reason why they shouldn’t agree, given that the changes are beneficial to them.

The new requirements relate to

  • Availability clauses s67E - these relate to the situation where the employee’s performance of work is conditional on the employer offering work and the employee is required to be available to do the work. The objective is to prevent clauses that require employees to be available without the employer being obligated to provide work. There must be stated guaranteed hours of work, there must be genuine reasons for the availability requirement, the number of additional hours have to be stated, and there must be reasonable compensation for being available.
  • Agreed hours of work s67C - every agreement must set out any agreed hours of work, including start and finishing times.
  • Cancellation of shifts s67G – clearly, this affects employers who have shift work (many don’t), where the employers want the ability to cancel shifts. Appropriate notice of cancellation has to be given and reasonable compensation paid for the cancellation.
  • Restrictions on secondary employment s67H – restrictions on secondary employment clauses (including because of any conflict of interest), have to be considered in the light of the latest changes. There must be a genuine reason for these clauses, which includes to protect commercially sensitive information or IP the employer’s commercial reputation, or to prevent a real conflict of interest that can’t be managed without a secondary employment clause. So if a conflict of interest clause can be managed in some other way, a blanket clause that has the effect of prohibiting employment in the case of a conflict of interest may be unenforceable.

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