Employment Law - Important Law Changes - A Dukesons Business Law Update

March 2016

This isn't legal advice - please contact me if you want legal advice


As an employment lawyer in Auckland, changes to employment law seem never ending and there seem to be endless employment law cases.

  • Important changes are in the wind under the guise of an Employment Standards Bill and a Parental Leave Act Amendment Bill, both of which have been passed into legislation, to be effective from 1st April 2016.
  • In relation to matters relating to the new Employment Standards, all new employment agreements must comply – for existing Agreements, there will be a 12 month transition period. Employment Agreements will need to be checked for compliance.
  • Parental Leave changes will apply immediately.
  • Many changes are involved, so this Update only briefly summarises the position. Employment Lawyers and employers are being kept busy by the constant movements in Employment Law in New Zealand.

A. EMPLOYMENT STANDARDS

Secondary Employment

Employers will need to state genuine reasons in Employment Agreements if they want to restrict employees from entering into other employment while they are employed with the Employer. Genuine reasons might, for example, include protecting the employer’s commercially sensitive information, intellectual property or commercial reputation.

Record Keeping

Employers will have to demonstrate that they are complying with minimum entitlement provisions by keeping detailed records of hours worked, including hours worked by salaried employees. This can be done by having worker hours stated in the employment agreement, the wages and time record, or in a roster.

Deductions from Wages

Up to now, deductions (apart from those required by law such as PAYE and Kiwisaver) could only be made from an employee’s pay if they consent. Now, Employers must consult with an employee before making any deduction, even if the Employee has previously consented, and only reasonable deductions may be made. (The amendments confirm that a clause in an Employment Agreement is sufficient to constitute “written consent” to deductions.)

Zero Hours Contracts

There are prohibitions on including availability provisions in Employment Agreements, where an employee is required to be available to accept any work offered to them except where:

  • there are guaranteed hours of work, as set out in the Employment Agreement;
  • the employer has genuine reasons based on reasonable grounds for including an availability provision; and
  • the employee is reasonably compensated for making themself available to work.Agreed hours of work will have to be recorded in each employment agreements.

Where shift work is involved, Employment Agreements will need to specify a reasonable period of notice that will be given before an Employer cancels a shift. Agreements will also need to set out the amount of reasonable compensation payable if that notice period is not given.

Liability

Employers may be named and shamed if they breach the new standards.

Banning orders may be made:

  • against employers e.g. from entering into employment agreements;
  • against officers (e.g. directors, partners, persons having significant influence over the management or administration of the employer) e.g. from being an officer or from being involved in employing employees.

Persons, including advisers like lawyers, who aid or abet an employer to breach the standards can be fined.

B. AMENDMENTS TO PARENTAL LEAVE

The amendment Bill is large and covers quite a number of matters.

Key amendments include:

  • expanding eligibility. The new definition of “primary carer” extends existing parental leave entitlements beyond the natural parents to individuals who assume primary responsibility for the day-to-day care of a child under the age of 6, if the primary carer meets the appropriate thresholds in terms of hours worked for the employer;
  • providing for a new Preterm paid leave entitlement in relation to primary carers of babies who are born prematurely;
  • entitlement to “keeping-in-touch days”, where by employees on paid parental leave can work for up to 40 hours during their leave period, without being treated as having returned to work;
  • allowing unpaid extended parental leave to be taken (by mutual agreement between employee and employer) in more than one block, within the extended leave period;
  • extending paid parental leave from 16 weeks to 18 weeks.

Feel free to send a link to this Update to anyone who would be genuinely interested.

Please contact me if I can help you with any company law issue or any business law or commercial law issues.

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Telephone: (64) 09 379 4556

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Copyright 2016

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Telephone: +64 9 379 4556 Mobile: 021 404 306. Fax: +64 9 379 4557 Email: steve@dukesons.co.nz