Fact and Fiction about Employment law changes June 2021

Posted on 18 June 2021 - 4:05 pm by Lisa Mackay

Whatever your political views on the speed and extent of the changes in legislation currently being proposed there is quick a lot of mis-information about what is happening and what is actually only being talked about or proposed. So, this newsletter tries to lay out the current status and give a level of insight into what you need to be preparing for.

Sick leave increasing to 10 days
This Bill passed Royal assent (the final stage) on 24^th May 2021 and comes into effect 2 months after that, so on the 24^th July 2021.
This increases the entitlement to sick leave from 5 days to 10 days, though the maximum accrual remains at 20 days. For existing employees, the increase to 10 days will take effect from their next sick leave anniversary date. I.e. if they started work for you on the 1^st January 2021, their sick leave anniversary date will be 1 July 2021, when they will be entitled to 5 days sick leave and then on their next anniversary date of 1 July 2022 they will be entitled to an additional 10 days sick leave.

3 days Bereavement leave for Miscarriage or Stillborn.
On the 30^th March the Holidays Act was amended to allow for 3 days bereavement for the parents in the event of a miscarriage or stillborn child.

Matariki Day
A date for Matariki has been announced for 2022, however, as yet there is no Bill proposed to actually enact this change. It is interesting to note that it has previously been proposed to introduce a Bill to have a public holiday to mark Matariki, but this failed at the first reading in 2009.

Parent-Teacher Interview leave
There is currently a bill at first reading to introduce Parent-Teacher Interview leave to allow parents to take up to 4 hours per year of paid leave to attend Parent-Teacher Interviews. It is proposed that this entitlement would arise from the start of employment and that employees would need to give at least 3 days notice of the requirement to take this leave.

Changes to Holidays Act
A working party’s recommendations have been accepted by the Government in respect of other changes to the Holidays act. The exact details of what these changes are are not clear and there is no legislation as yet proposed. However, the headline proposed changes are:

Entitlement to Bereavement leave and Family Violence leave from day 1 of employment
Entitlement to sick leave from day 1 of employment (on a sliding scale)
Simplification of the rules around holiday pay entitlement post parental leave

Will this definitely ALL become law?
No, there is a process of consultation that needs to be gone through before things become law, and, it should be noted, that there is a significant amount of push-back on the government about the amount and speed of changes that are being enacted. As such, we can only watch this space, and make submissions on proposed changes as they happen.

The change in the Bereavement entitlement will probably have limited widespread impact if, for no other reason than most employers would have already have given a lot more than 3 days bereavement leave in this situation anyway.

The increase in sick leave, however, is liable to have a fiscal impact on companies with high sick leave usage and/or sick leave abuse. I recommend you have a read of our February newsletter Managing sick leave – Skivitis or Genuine, how do you deal with it? And/or watch the webinar on Managing sick leave

Our templates are being updated

The employment agreement templates are currently with the Lawyers for final review and the new templates, incorporating the changes will be uploaded in the next few weeks. However, the current templates are still valid and suitable for use and any changes (such as the increase in sick leave) will automatically over-ride any differences with your employment agreements.

Don’t forget to register for our monthly free webinars

10am 24^th June – Types of employment engagement
10am 29^th July – Induction – ensuring you make the right first impression
10am 26^th August – Managing flexible working arrangements
10am 30^th September – Setting KPI’s to truly drive your business
10am 28^th October – Successful performance reviews
10am 25^th November The Courageous Conversation
TBA once there is greater clarity on changes – Law change update

And hopefully, that is all clear as mud!
Cheers

Lisa Mackay
Managing Director

Do I need to update my employment agreement with change in sick leave?

Posted on 26 July 2021 - 12:18 pm by Lisa Mackay

With the increase in sick leave taking effect this week, and a large volume of case law changes, and proposed further changes in legislation I have taken this opportunity to do a major overhaul of the employment agreements in conjunction with my Lawyer. And the new agreements are now loaded onto the website.

Do I need to issue new agreements to existing staff?
No, the changes in legislation will automatically overwrite anything you have in your current employment agreements.

However, we do recommend that, if you are making any changes such as a promotion etc, that you do take the opportunity to issue updated employment agreements rather than variations to agreements.

What are the changes?
The key focus of the changes made are:

To increase sick leave to 10 days
Included Bereavement leave for Stillbirth and miscarriage
Updated the naming of Domestic Violence leave to Family Violence leave
Included secondary employment and non-competition as standard clauses in the templates
Included consent for drug testing in the standard templates
To future proof the agreements as much as possible by removing express references to specific Acts, and just refer to “as per Legislation”.
To remove reference to the specified Public holidays. There has been a lot about Matariki, however, this is still not actually legislated, nor is there a Bill proposed to change legislation. As such, my anticipation, at this point, is that Matariki will become a Public Holiday, but one of the other Public Holidays will be dropped.
Updated the Unforseen events and Natural Disaster clause in line with the case law learnings of the last year. The key changes to the wording are underpinning that you HAVE to consult before making changes, the employer can’t make unilateral changes, and can’t force people to take annual leave.

Should I update my agreement templates for any new staff I take on board from now?
Yes. Given that there have been so many changes in legislation and case law over the last year, and so many more proposed over the coming years, I would strongly encourage you to update your employment agreement templates.

The simplest way to achieve this is to adopt the HRtoolkit templates for new staff
Or, we are of course happy to do an employment agreement review for you.

HR is Easy
I know that HR is definitely not feeling very easy with all the changes going on at the moment, but with the right help and support it doesn’t need to be a nightmare. So sign up now for as little as $349 + GST per annum

Don’t forget to register for our monthly free webinars

10am 29^th July – Induction – ensuring you make the right first impression
10am 26^th August – Managing flexible working arrangements
10am 30^th September – Setting KPI’s t truly drive your business
10am 28^th October – Successful performance reviews
10am 25^th November The Courageous Conversation
TBA once there is greater clarity on changes – Law change update

Cheers

Lisa Mackay

Consult, Consult, Consult

Posted on 18 August 2021 - 3:49 pm by Lisa Mackay

Well, we are back at level 4 and everything crossed that the go hard, go fast approach will keep delta contained, and Lockdown short
.
What have we learnt from last year?
Obviously, when we went into lockdown last year we were dealing with a total unknown in respect of what we could and could not do in respect of our employees. Since then several cases have come before the authority, and these are some of the key learnings you need to consider:

You CAN’T unilaterally make changes to someone’s terms of employment, you must consult
If you receive the wage subsidy you HAVE to pass this on as wages, but this shouldn’t mean that people get a false pay increase because the subsidy level is higher than their normal pay. In that case you pay them 100% of their normal pay, and use the balance to top up other members of the team
You CAN’T force someone to take annual leave, but you can always ask them if they want to, and offer that as an option
If someone is WILLING AND ABLE to work, then they are due to be paid, you can only vary that through CONSULTATION

What does Willing and Able mean?
To help with this assessment, here are some scenarios:

An employee, such as a factory or café worker, may be WILLING to work, but because they can only perform their duties at the workplace, they are not able to get to work due to the lockdown, therefore they are not ABLE to work. As such, there is not automatic right to pay, but you should be applying for the wage subsidy.
An employee such as an essential services worker for whom work is available and they are ABLE to attend, but they are not WILLING to work (without good reason) has no automatic right to pay. An example of a good reason may be that they are immune-compromised. But if the reason is “I don’t want to work” then talk this through with them. There are a lot of nasty stories out there about this Delta variant so they may have genuine concerns and you should work those through with them before saying you won’t pay.
An employee who can work from home, e.g. an admin based person is both WILLING AND ABLE to work and therefore is entitled to pay. However, in this situation, the amount of work may be lower than normal. As such you need to consult with them about how you are going to handle the situation

So, in summary, you will need to look at this on a case by case basis, but we strongly recommend that any decisions to reduce pay are only done after you have gone through some form of consultation process.

Can they be required to work?
Work must be done within the confines of the current restrictions i.e. all but essential workers must be at home. But, if they are receiving payment, you can be requiring them to do reasonable tasks for the time that they are being paid for.

Consultation templates
The Restructuring section contains the documentation you will need for this process. The 2 main key documents are:

Changing terms of employment consultation document – ideal for when you are changing terms, but not proposing redundancies
Consultation document template – which includes the broader consultation requirements if you are proposing major changes including redundancies

We are here to help

We are still open as normal, and here to help, so please do call if you have any questions, 021 741 544 or 0800 HRtoolkit. Please remember, the only daft question is the one you don’t ask! Most issues can be solved very quickly and easily with a bit of early intervention.

In the meantime, stay home, stay safe, and let’s all follow the rules and hope that this lockdown will be short, sweet and effective

Cheers

Lisa Mackay
Managing Director

Can I mandate compulsory vaccines?

Posted on 6 September 2021 - 3:08 pm by Lisa Mackay

Back in April, I sent a newsletter advising that you can’t make it compulsory for someone to have a COVID Vaccination. This advice has NOT changed. However, the acceptance that the requirement for vaccination is reasonable Health and Safety requirements is certainly increasing.

Government-mandated vaccinations
The government has mandated that certain roles must be performed by people who are vaccinated. It is quite important languaging as they say that the role “must be performed by a person who is vaccinated” (making it a genuine occupational requirement of the role) rather than “the person currently performing the role must get the vaccination”. Therefore, anyone who is not vaccinated is no longer eligible to do the role.

To put this into another context, it would be a genuine occupational requirement to have a drivers licence if employed as a driver, so, if they lost their drivers licence they would no longer fulfil the requirements of the role, or if they refused to get your drivers licence/didn’t have a drivers licence they would not be qualified for the role.

Can I or my main contractor mandate that vaccination and/or wearing a face mask is required?

If you believe there is a high risk for your role which means that vaccination/mask-wearing is a genuine occupational requirement then yes, you can mandate this in your workforce. And a client to whom you contract can pretty much put in place whatever rules they like, you just have to find a way to abide by them.

Some examples of jobs where it is likely that this would be a genuine occupational requirement include:

Front line workers – Boarder staff, medical professionals, supermarket workers etc
Aged care facility workers – due to the high-risk level for aged care residents if they contract Covid
People working with children who are below the vaccination age

Some roles which would be more borderline as to whether it was a genuine occupational requirement would be:

Hospitality/café workers who are front facing with clients, but not necessarily in a high-risk environment such as the airport
Back of house roles (e.g. administration) who work in higher-risk companies, but not actually in the high-risk area themselves
Customer-facing roles, particularly in high traffic areas such as Malls
Construction sites where there are high numbers of personnel in a confined area

So, you need to assess the risk for each of the roles and decide if you can justify this as a genuine occupational requirement.

What can I do if people refuse vaccination or wearing a face mask?

Since the latest lockdown, there has been a huge shift in public opinion about the need to get vaccinated, and acceptance that face masks are required. However, this is obviously still not universal.

If you assess that mask-wearing and Vaccination is a genuine occupational requirement for the role then the first thing that you need to look at is whether you can redeploy the person to another role. In a large organisation such as Air New Zealand, this is relatively easy. However, for most small businesses, this is simply not an option and, ultimately, you make have to terminate someone’s employment if they no longer meet the requirements of the job (Please call me before doing this)

But I can’t discriminate?
The main reasons I have heard over the last couple of weeks for refusal to wear a mask or be vaccinated are related to:

Religious grounds
Health reasons

These are valid reasons, which the employer needs to take into account. However, under the Human Rights Act, an employer has the right to enforce the rules where the risk level is unreasonable for the employer to accommodate. (See sections 24 to 35 of the Human Rights Act)

What about people who are vaccinated, but don’t want to work with someone who isn’t?

Personally, I would be fairly concerned about working in close proximity with someone who was not vaccinated (however valid the reason) because they are putting my safety at risk if they contract the virus and pass it on to me. And, as an employer, you are responsible for providing a safe working environment for everyone. So, you do need to take into account the welfare and viewpoints of all staff.

What can I do as an employer?
At this stage I would recommend surveying your staff to find out where their thinking is in respect of vaccinations and mask-wearing:

If 100% say “yup, I want it to be compulsory” then you can mandate for your company that everyone in the company abides by that, and any new recruits need to abide by that ruling
If you get 90% saying “yup I want it to be compulsory”, but a few outliers saying no (for whatever reason) then work through with the outliers what the reasons are and see if you can come up with a solution
If the feeling is that the majority don’t want it to be compulsory then review if you really need to make it compulsory, or if there is another solution available

NB I would recommend that you get onto this sooner rather than later. It is only in the last few days that everyone over the age of 12 has been eligible to get a vaccination, therefore, within 6 to 8 weeks it will have been possible for everyone over the age of 12 to have had 2 doses. As such, I anticipate that compulsory vaccination requirements will become far more common in about 8 weeks time.

What if we can’t find a solution?
Ideally, yes, you will find a mutually agreeable solution, but that is not always possible and you may need to consider termination of their employment agreement. However, I strongly recommend you give me a call before going down that route as we are navigating unknown territory in respect of Employment Law.

We are here to help…

We are all navigating some very interesting times at the moment, but we are here to help so give me a call on 021 741 544 if you need to talk over your situation.

Cheers

Lisa Mackay
Managing Director
021 741 544

Do I have to have a No Jab No Job policy?

Posted on 21 September 2021 - 2:55 pm by Lisa Mackay

As a business owner, you have a legal obligation to:

Provide a safe working environment
Act in good faith in the best interests of your company

Irrespective of which side of the vaccination argument you sit, as a business owner you need to put those views aside and ensure that you are fulfilling your legal obligations to the above.

The H&S issue is already fairly widely understood, however, the issue of acting in good faith in the best interests of the company is what do you do if a client or company you sub-contract to introduces a No jab, no Job policy? If you don’t comply, how much will that affect your business? Many companies who contract to aged care facilities, border points (airports, ports etc), and schools are already facing this issue.

This is a challenge which many business owners are currently grappling with and therefore I will be hosting a Question and Answer session at 10am on Thursday 30^th September with myself, Max Whitehead (A fellow HR professional) and Mark Todd (Director of Ockham group, a business owner working through introduction of a No Jab, no Job policy).

Click here to register.

This will be Q&A session to hear what other companies are doing about this and discuss how can we proactively move forward to address this new and very real challenge to businesses. NB the discussion is not to debate the rights and wrongs of vaccinations, compulsory mask-wearing or compulsory testing at the Auckland Boarders, it is to discuss how we deal with this brave new world as business owners.

I don’t agree so I am going to ignore this!
To put it bluntly, the freight train of COVID passports, mandatory mask-wearing and compulsory testing is already out of the station and up to full speed!

Why do I say this?

New Zealand’s Health and Safety law was based on Australia’s. Recently the NSW Deputy Premier, John Barilaro told its businesses that they will face “significant fines” if they serve unvaccinated customers who haven’t received their double dose.
In the last few weeks, a law was quietly passed in NZ that imposes an up to 6 months jail sentence and $4000 penalty on any business that failed to stop a person from entering a workspace without first scanning or signing in
In the UK you can’t travel to certain places unless you can prove you have been double vaccinated, and Victoria, Australia, yesterday announced similar rules
Tai Webster was released from his NZ Breakers Basketball contract yesterday for refusing to be vaccinated

So, whether you agree or not, the reality is that these changes are coming, and you can either be ahead of the game or be caught off guard by the announcement at the 1pm Cindy and Ashley show!

So please join me, Max and Mark for a Q&A Session on how to address this issue, and share the knowledge about how other businesses are moving ahead

Cheers

Lisa Mackay
Managing Director

No Jab, No Job!

Posted on 5 October 2021 - 3:49 pm by Lisa Mackay

Setting KPI’s to truly drive your business

Posted on 11 October 2021 - 11:35 pm by Lisa Mackay

Successful Performance Reviews

Posted on 5 November 2021 - 12:16 am by Lisa Mackay

More Challenges ahead for 2022

Posted on 8 March 2022 - 3:18 pm by Lisa Mackay

Well, late 2021 felt like there may be light at the end of the tunnel, but then we heard Omricon, and the reality is that it is unlikely that Omricon will be the last variant. On top of Covid:

the Government has just announced that the minimum wage will increase a further 6% to $21.20 from the 1st April 2022 (a 20% increase since we started the first lockdown)
A Fair Pay agreement system has been proposed which is designed to set industry-wide pay rates
Matariki as an additional Public holiday has passed the first reading, and is currently at Select Committee stage. I.e. this is not yet legislation, and may yet fail at the second or third reading, however, my anticipation is that this will pass.

So, all in all, 2022 is going to be another rollercoaster ride for employers.

Living with COVID
With 981 new cases on 14th February, the likelihood of your workplace coming into contact with COVID in some shape or form over the coming months is high.
At the point of publication, it seems unlikely that we will go back into full lockdown and/or see the return of the Wage Subsidy. If for no other reason than the Government simply cannot afford it!

However, there is still the following subsidies available:

Short-term absence payment – Key points of note:
1. $359 one-off payment
2. You can only apply once every 30-day period per employee (unless medically advised they need another test).
3. Only for employees who cannot work from home
Leave support scheme – Key points of note:
1. $600/week for Full-time and $359/Week for part-time
2. Only available if they need to isolate for 4 + days
3. Only for employees who cannot work from home
4. You can’t apply for a 2nd payment until the employee has had to isolate of 11+ days (i.e. first 3 days = no payment, next 7 days = 1 payment etc)

However, as with the Wage subsidy, you still have to try your hardest to pay them as per normal, or at least 80% of normal pay and the minimum of the subsidy received.

Protecting your business continuity

The rules around who has to isolate and for how long are changing as we move through this process. However, to protect your business continuity, and protect the H&S of your staff, you need to consider what would happen if (when) a member of staff tests positive. How many close contacts would then have and how do you minimise that number?
Some simple steps you could take are:

Operate under Level 4 protocols (i.e. everyone working from home) if that is viable
Have split teams who don’t come into physical contact. That way only a proportion of your workforce would be taken out at a time
Make all meetings via zoom/teams etc and only have face to face meetings when absolutely necessary
Close off “common” areas such as lunchrooms and direct staff to have lunch at their desks or off-site
Continue to use physical distancing protocols for deliveries etc
Talk to your staff about how they are interacting in their personal time. Though you cannot control what someone does in their personal time, having honest discussions about the potential impact of them being at a “super-spreader” event (operated within the rules) may make people think twice before they go. Further, if an employee acts in a manner that deliberately puts the company and co-workers at risk, such as attending an illegal gathering, this may well be a disciplinary matter.

2022 Free Webinar Programme
I am continuing the free webinar (on the last Friday of each month at 10am) and here is the programme for 2022:

February 25th 10am – Non Fiscal Benefit options – With a tight labour market, there is always the risk that someone is going to be offered more money than you can afford. But what other benefits can you offer to attract and retain good people?
March 25th 10am – Performance Improvement Plans.
April 29th 10am – Disciplinary process
May 27th 10am – Non-traditional Recruitment Methods
June 24th 10am – Personal Grievances – what they are and how to manage “that letter”
July 29th 10am – Assessing your business to decide what change is required
Aug 26th 10am – Restructure and Redundancy
Sept 30th 10am – Assessing Culture fit
Oct 28th 10am – Exit Interviews
Nov 25th 10am – Managing the festive season

We are here to help

We are all navigating some very interesting times at the moment, but we are here to help so give me a call on 021 741 544 if you need to talk over your situation.

Protecting your business against a close contact event

Posted on 8 March 2022 - 3:19 pm by Lisa Mackay

I have just published some new documents on the website which will be of use to you all:

A Covid Response pack – including key lines and covering what you need to know about how to protect your business against a close contact event
An updated COVID H&S assessment matrix taking into account the government matrix and more details about how to assess the risks in your business
COVID clauses for your employment agreements – covering off Rapid Antigen testing, the release of results, and ensuring that you keep yourself safe at home
Recruitment Open day framework – this lays out a more practical recruitment process which also removes as many barriers to application as possible. This is particularly useful when recruiting in industries such as trades and construction where candidates are in very high demand

Author Archives: Lisa Mackay