Where is the Bill?

The Employment Relations Amendment Bill has been put before parliament.  However, it is still with the Select Committee after the first hearing, and they are not due to report on it until September 2018.  And then there are another 2 readings, before it finally gets Royal Assent (i.e. final approval).  And then there are another 4 months before any changes come into effect.   So, there is no need to panic, nothing is going to change for a while yet!

What are the proposed changes at this point?

Obviously, this is not law yet, however the proposed amendments, in summary are:

1. Trial periods will only apply if you have fewer than 20 employees
2. Rest and meal breaks will return to what they previously were
3. More rights for Unions (no surprises there with a Labour Government)

Are trial periods toothless?

Very sadly, the trial period legislation has proved to be exceedingly toothless, with the courts not strongly upholding the legislation as it is written.

The key bone of contention lies around the apparent removal of the “good faith” requirements of the employment relationship, i.e. apparently giving the Employer the right to fire at will and without risk of recourse within the first 90 days.  In general terms, the case law is showing that, whichever party is acting in bad faith, will lose.  So, if the employer gets to day 89 and says “thanks, but no thanks” without any prior discussions, then they will lose.  Equally, if the employee has been talked to regularly about issues and give a chance to improve within the 90 days, but they still try to push a personal grievance claim, then they will lose.

What we have long advised…

Because of this, our advice has always been to make sure you raise issues early, and, if you are considering a 90-day trial period termination, then do go through a formal process.  NB, we do have template trial period termination letters and invitation letters for our members, however these are deliberately not on the website as there is a high risk to you of incorrect use.  But if you do ever have need for them give us a call and we will talk over your risks and send you the templates if that is appropriate to your situation.

Yippee, Death to Trial Periods!!

But, I opened with the statement “Yippee, death to trial periods!”, surely, I was not serious??  Actually I am.

The Employment Relations Act has long held a provision for Probation Arrangements, and how these compare to trial periods are as follows:

1. Both have to be in writing in the employment agreement
2. Trial period is for a maximum of 90 days, but a probation period can be as long as you like
3. With the Trial period an employee is not supposed to be able to raise a Personal Grievance (but there is no mechanism to stop them doing so, it is only a legal defence), a probation period doesn’t hold any such protection
4. A probation period can specify a fast track performance management process which makes it very clear to everyone what is going to happen if they don’t come up to scratch.

The most common mistakes that employers make are:

1. Thinking they have a legal protection against a Personal grievance, whereas they only actually have a legal defence, and they still have to pay to defend themselves
2. Thinking that a new employee will get there “with a bit more time”, or “a bit more training”, but before they know it, they are at day 89 and they haven’t actually given the employee any direct or honest feedback
3. People raise grievance because they are angry, because they don’t understand what they have done wrong, and the employer has not articulated this well.

As such, Probation Periods (as opposed to trial periods) can be for longer periods, can provide a lot more clarity to both parties, and, though they don’t provide the legal protection against a Personal Grievance, the reality is that the Trial Period doesn’t provide much either!

So, where to now?

The current legislation still stands, until such time as the Employment Relations Amendment Bill is closer to completion, we will hold off making any significant changes to our templates until that time.  NB if you do download templates at this time, don’t worry, as part of our service to members we will send out a communication with any amendments you need to make to templates you have downloaded.  In the meantime, Probation Periods can be included in addition to Trial periods, and this may be something you wish to consider…. And our next HRtoolkit Service tips will be all about how to include them, so follow-us on facebook and/or watch out for our newsletters to find out more.

Call us to talk this through

Feel free to give us a call on 0800 HRtoolkit (0800 47 86 65), we don’t charge for those 10 minute queries, and often that is all it takes to solve your HR nightmares.

The post Yippee, death to Trial periods… and I bet you never thought you would hear me say that! appeared first on HRtoolkit.

Changes to the document library include:

• Employee request for parental leave
• Letter from employer confirming parental leave

• Paid parental leave has increased from 18 weeks to 22 weeks from 1 July 2018.
• The number of “keeping in touch days” is also set to increase. From 1 July 2018, when paid parental leave is increased to 22 weeks, an employee will be able to work up to 52 hours without losing their entitlement during the period of paid parental leave.
• Although parental leave payments are administered by the IRD, employers should ensure that their policies and/or information sheets are updated to reflect the changes.

• Paid parental leave is available to casual, seasonal and fixed-term employees, and those with more than one employer
• Paid parental leave can be taken by any primary caregiver of the newborn baby
• Paid parental leave will be available to people who have recently changed jobs
• Paid parental leave will offer more generous benefits to parents of babies born pre-term
• Parents are able to resign their positions without losing their entitlements
• Unpaid parental leave will be able to be taken more flexibly
• Employees are now able to go back to work for up to 52hours during their paid parental leave

Keeping in touch

The changes also allow people to work up to 52 hours during the 22 weeks of paid parental leave. These hours can be used to keep up with skills development, training, handover or help the parent ease back into work. Keeping in touch days are not compulsory, and can only be used in mutual agreement between an employer and an employee. Additionally, they cannot be used in the first four weeks of a babies birth. This is to protect the baby and mothers health.

Parents of babies born pre-term are eligible for additional Keeping in touch hours, up to an average of three hours per week and don’t need to wait for their baby to be four weeks old before using these hours.

Learn more

Down load the MBIE maternity leave table which clearly explains parental leave entitlements here, please don’t hesitate to give us a call on 0800 HRtoolkit (0800 47 86 65). We don’t charge for those quick questions, and often a few minutes with our experts is all you will need.

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The Labour Inspectorate was called to investigate Food City over concerns about the hours and conditions staff were working under.  Some staff had to stop working because their health was failing, and Food City did not provide sick leave entitlements.  The inspectorate said Food City took advantage of vulnerable workers, who were older and did not speak English.

Cleaners are considered ‘vulnerable workers,’ under the ERA.   It was found Food City’s cleaners at the Northcote Shopping Centre food court, were working 12-hour days up to six days a week but only being paid only the minimum wage for 40 hours.

The Employment Relations Authority ruled Food City had breached the Minimum Wages Act, and had to pay $126,000 in arrears owed to the workers, and $37,000 in penalties.

Ensure your employment contracts are legally compliant.  Subscribe to our DIY Employment Toolkit or give us a call on 0800 HRtoolkit (0800 47 86 65) to chat with our experts about how what you need, to be legally compliant.

The post Cleaning company ordered to pay $160,000 appeared first on HRtoolkit.

The recent ruling against Smiths City,  a large New Zealand retailer, for short paying staff who were expected to come to work before their normal start time for an unpaid  ‘pre-work’ 15 minute meeting, is a warning to all employers.

For at least 15 years, every Smiths City store in the country has held a meeting of sales staff for 15 minutes every morning, covering topics ranging from sales targets to promotions, staff were not paid for these meetings.  As a retailer many staff were on minimum wages and failure to pay workers for these meetings meant Smith’s City were not paying at least the minimum wage for all the hours worked.

Employees need to be paid for all the time that they work. This includes the time an employee spends:

– opening or closing the business
– in training
– in meetings
– at mandatory events outside work hours.

The Employment Relations Authority (ERA) had to assess whether the time spent in the daily meetings was ‘work’ for Smiths City’s sales staff. These meetings, were held at 8.45 am each day, at every Smiths City store before the stores opened each day at 9.00 am.  This morning meeting provided staff information for the day ahead and help them in their work. Smiths City’s practice was not pay those staff who attended.

The three factors the court used in determining whether activity was ‘work’ are

• the constraints on the employee
• the responsibilities on the employee
• the benefit to the employer.

Employees need to be paid for all the time that they work. This includes the time an employee spends:

• opening or closing the business
• in training
• in meetings
• at mandatory events outside work hours.

It was determined that Smiths City staff who were asked to attend the morning meetings was considered work.  Smiths City could have been up for back payments to all staff who attended these meetings, however the ERA ruled that there was no set rule for these meetings across the branches, and inadequate attendance records, therefore Smith City did not have to back pay for the previous 6 years. Smith City argued against the decision stating employees were not performing work at the meetings and they paid staff commissions which made up for the unpaid meetings.  Smith City also implied that the time for these meetings was offset by the flexible approach the company offered to allow employees time off to attend appointments or if the shop was quiet.

The Labour Inspectorate appealed this ruling in the Employment Court and were successful.

Judge Ingles overturned the original ERA decision and ordered the retailer Smiths City to pay its employees for unpaid pre-work meetings.  Judge Ingles stated the meetings were run on a standardised template provided by the company, and while the meetings had an informal tone, workers were expected to attend, and were admonished – and in some cases issued formal warnings – if they skipped them.  In addition, commissions are not a substitute for the retails obligations to pay the minimum wage and keep adequate time and wage records.

Smith’s City has agreed to pay and pay they will!  Judge Ingles estimates each full-time worker would miss out on approximately $800 per year, because of the meetings and has ordered Smith City to work out how much is owed to their workers and pay it back by 8 August this year.

Since this case has been publicised there have been hundreds of calls from retail employees who say they have experienced similar treatment.  The most common complaint being

It is important to ensure you paying your workers correctly, especially those workers on a minimum wage.

Subscribe to HRtoolkit or give us a call on 0800 HRtoolkit (0800 47 86 65) to chat with our experts about how what you need, to be legally compliant.

The post Smith City ordered to pay staff appeared first on HRtoolkit.

Introducing a workplace code of conduct and clear policies on sick leave/reporting absence.  Policies outlining the company’s stand on such matters, will reduce frustration and assist employees to understand your workplace culture and work expectations.  Lets examine the business impacts of a couple of very common low-level skiving practices that we come across regularly.  There are more scenarios covered in the HRtoolkit Quick Guide to Sick Leave

Recently, I was visiting an apartment undergoing a re-clad in the two hours I was there I saw the worst presenteeism.  Three workers had 2 ciggie breaks, before their morning smoko, and another worker stood on the scaffolding, in front of me, having an argument on the phone with his girlfriend for 20 minutes.   I suspect the re-clad on that particular job will not come in on-time and to schedule.  Showing up to work is not enough!

What is your policy around smoking breaks? Cigarettes may take years off your life, but they can also easily steal 30 minutes or more of daily productivity from a few extra quick ‘ciggie’ breaks.

And what about the guy on the phone to his girlfriend? Mobile workers need smart technology, for productivity and safety reasons.  Technology is often criticised for encroaching on our personal time, with smartphones creating an always-on culture, but the opposite also holds true. We can literally sit at our desks and skive – sending personal emails, checking our bank balance, browsing social media, or chatting to our friends overtly or via text messaging/Facebook messenger or other apps.

As an employer it would not be a useful use of your time to be continually checking on workers and it’s simply not possible in the case of remote workers.  With all workers, there is a level of trust required, in addition you need to set the standards early in the employment relationship and formalise them in writing through good policies and a code of conduct).

A common misconception of employers to think they can just lead by example, and nothing else should need to be said.  However, people do not share all the same values, or motivations. Our cultural and family backgrounds vary, which all feed into shaping our understanding of work. Having a code of conduct, fleshes out the day to day issues that arise in the workplace and provides suitable guidelines on what the business expects.

The post ‘Skivitis’… beware it’s catchy appeared first on HRtoolkit.

‘Pulling sickies’ is often a knock-on effect from not addressing repetitive, low-level skiving.  If issues such as talking too much on your phone during work time, showing up to work late repeatedly or having long lunches are addressed early the employment relationship, it sends a signal of laxness that can lead to a more serious form of ‘skivitis’ – non-genuine sick leave.  Take a look at our quick guide to sick leave issues it’s a great tool to assist you when you are looking at framing up a sick leave policy

Non-genuine sick leave is a tricky area to navigate.  As employers you want to think the best of your workers – because let’s face it – they are the back bone of your business. Yet you know at its essence it is disrespectful and damaging behaviour.  However, if you have workers with patterns of absence it is important that you deal with it – and promptly.  Start with downloading the HRtoolkit sick leave policy, which outlines:

• Protocols for calling in sick (will you allow texting or is it strictly calling).
• Who staff are to call, when sick. If it is a Manager then ensure during induction the staff have the contact number loaded into their phone from day one.
• Outline the statutory requirements for when a medical certificate is required.
• Protocols for your shift workers.

Then communicate the policy with your staff.

I was recently discussing this very issue of poor productivity due to low level skiving and suspected non-genuine sick leave with the director of a Tech company.  I advised him to implement a code of conduct and a sick leave policy and discuss it with the staff.  The owner felt uncomfortable and said he didn’t want to come across as an ogre or a suspicious person.  He was surprised to know this is actually a reasonably common response from Kiwi business owners – Kiwi’s on the whole, are culturally averse to having the ‘courageous conversation’.

Framing your conversation around what you want to see, and the potential impacts on co-workers who may have to pick up the extra work, rather than focusing on the negatives, should assist the conversational flow.  For example:

“We all want the business to succeed and I want to be able to trust my workers to perform their role well, and not worry about unexplained absence, people showing up late, or phoning in sick two hours after start time.  We are all professionals.  I am implementing some simple guidelines and company protocols to assist us all and clarify the expectations of the business around workplace performance….”

All companies should have a clear policy on sick leave and absenteeism.  Please download HRtoolkit’s sick leave policy to assist you.

When you have established the boundaries for sick leave and reporting in sick, you also need to address your internal communications, including:

• A handover of any client appointments, training courses, new staff starting and/or any key workflow issues you as a manager need to know about.
• Inform reception
• Informing Payroll – administration of sick leave can be particularly time consuming if managers do not pay attention to the details:
  • WAGE/TIMESHEET: ensure that the person covering’s timesheet states who they are covering for e.g. Aaron Staples covering for John Bana sick

Good communication in conjunction with good company policies ensures your company manages the winter chills and ills more effectively.

The post Combat Workplace Winter “sickies” appeared first on HRtoolkit.

This does not make for a good first impression of the business, nor does it inspire the your employee.  Those first 90 days are crucial to how your new employee will fit into the company and the HRtoolkit New Employee Checklist gives you a great outline for welcoming and successfully inducting your new staff

Here are some of the common pitfalls we come across, with companies not  preparing well for their new employee.  Sadly, we often hear about these situations too late – during the exit interview of an excellent employee.

1. Confusion and frustration because the employee has no clear understanding of their role

• As an employer you should have provided a clear job description during the hiring process

2. Lack of communication from management about work expectations, outlining clearly:

• The standard of work you expect
• Explaining clearly what is required from the employee, when they are not meeting the standards
• Give training/ coaching and support to reach that standard
• Reach a sound decision during a 90 day trial.

Never exit a person on day 89 of the 90 day trial – it is high risk and unnecessary stress.  If you are following the above pointers, and you will be able to constructively manage the successful performance of your new employee. It is important to check your 90 day trial clause is valid.

Finally…Performance and goal setting is a discipline that should continue throughout your employee’s time with you.  You may think you cannot afford the time to coach staff, however if staff leave, the cost to the business is conservatively $25,000 often more.

The post SUCCESSFULLY INDUCTING NEW STAFF appeared first on HRtoolkit.

The HRtoolkit Quick Guide to Recruitment outlines a variety of channels to communicate your vacancy. These channels can complement the traditional internet job sites and media.  An often-overlooked avenue is asking current staff if they know anyone suitable.  Several companies we work with, run a very successful “refer a friend”  programme which provide financial incentive for staff who find a good candidate.  Other less formal advertising channels to consider are local clubs, church groups, student job search, chamber of commerce or sports clubs.

It’s important to follow a recruitment process thoroughly:

• Screen CV’s. Look at your applicants’ work track record, have they job-hopped a lot? Do they have the key skills you require?
• Telephone interview candidates. This will help you understand their general suitability and expected pay rate.
• Have the candidate fill in the HRtoolkit job application form. This provides some protection to the employer that the candidate is being honest about their achievements, experience and declaring anything that may pose a difficulty for the candidate in fulfilling the role.
• Use the HRtoolkit sample interview questions. Good competency-based interview questions increase your ability to make a good hire by 60%. Scenario-based questions can reveal people’s work style e.g organised vs unstructured, good time management vs reactive. Competency-based questions assist you in building a better picture of the candidate than simple “yes” and “no” questions.

Once you have decided on a candidate, ensure you use the correct employment contract by going to the HRtoolkit Employment Contracts section of the document library.

After you have recruited, induction is the next step.

The post How to hire in a tight labour market appeared first on HRtoolkit.

If a natural disaster or other serious event happens, the health, safety, and security of people should be the main concern of all employers and staff. This comes before thinking about the interests of the business or organization. Employers and employees should remember to keep in regular contact and deal with each other in good faith.

Contents

The post Do I need to pay people after a natural disaster or emergency? appeared first on HRtoolkit.

Restraints of trade definitely have a bad reputation as being unenforceable, and I have heard many horror stories of salon operatives setting up shop in the immediate vicinity and nobbling your client base.  However, the good news is that they can be made to be enforceable.

What you can and can’t restrain

Legally you are allowed to restrict someone from stealing your clients.  However, you CAN’T prevent someone from earning a living.

Why do Restraint of Trades fail?

The most common mistake with Restraint of trade is putting in an unreasonable restraint such as “you shall not undertake work in competition within a 50 Km radius of the salon”.

Basically, this would restrict someone from earning a living in the same city as they are currently working.  This is considered unreasonable.  Unfortunately, if a restraint clause is found to be unreasonable then the whole restraint is found to be unenforceable, so you would not have a claim against them for setting up next door.

How do you make restraints enforceable?

For Salons a geographic restraint probably makes the best sense, so think about the area you want to limit.  For example:

“You shall not undertake work in the suburb in which the salon is based, nor in the immediate surrounding suburbs”

This would be appropriate for a Grey Lynn, Auckland salon as this would restrict someone from setting up in Ponsonby, but they could still set up in Parnell.  So, arguably, you are not limiting them from earning a living.

You also need to think about how long the restraint is for.  3 months may be too short a time period when you consider the cycle of your clients.  However, 12 months would probably be too long a restraint.  So, consider how often your clients visit you and base the restraint length on that.

Poaching Clients

The law is clear that you are not allowed to steal clients from an employer.  This is a matter of good faith and therefore a fundamental principle of employment and contract law.

As such I recommend that, in addition to the Restraint of Trade, you have a Non-competition clause, for example:

It is an important term of this contract that you must refer all business during the term of this contract that may relate to the business of the company, to the company and that after the termination of your contract, you will not for a period of six months from the date of termination approach or solicit business from any client, customer or contact of the company for the purpose of selling products or services in competition with the company.

In summary

Think carefully about what you want to restrict, and be reasonable in your restrictions, and put in place a non-competition clause.

Help is at hand

Call the HRtoolkit team on 0800 HRTOOLKIT (0800 47 86 65) for more help and advice, NB we don’t charge for the 10 minute issues, and in the vast majority of cases 10 minutes is all it will take our specialists to solve the issue with you.

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