EMPLOYMEMT UPDATE 2015 Russell Drake & Yolande Duckitt Russell Drake Consulting Group / EMA

Overview Update on legislative Changes Procedural Fairness Guidelines on Volunteers & Accommodation

Legislative Update (1) Greater flexibility around meal/rest breaks No prescribed formula Subject to agreed terms and conditions Will now be more a H & S issue rather then employment law - adequate rest and relaxation - employee wellbeing (2) Parental leave: extended from 14 to 16 weeks

Legislative Update (3) Mondayisation of ANZAC & Waitangi Days Previously applied only to Christmas/Boxing/New Year and 2 nd Jan Not an issue for casuals (T1.5 if work on actual PH and no DIL) Part-Time & Full-Time i.e. Waitangi Day (Saturday 6 February 2016) - EE who ordinarily works on a Sat (3 out of the last 4) - if work on the Saturday - T1.5 and DIL - if not work – paid for non-worked PH - however, if scheduled to work on Monday this will become PH so if work will be paid T1.5 and DIL (Sat is then non-paid day) - EE cannot be paid twice for one PH

Procedural Fairness S4 of the ERA Good Faith Obligations – Not do anything to mislead or deceive – Remain responsive and communicative Forms heart of everything ER (Manager) must do and can be as guilty through ‘inaction’ as may be through ‘action” Employer bound to act when they become aware of situation which “has the potential” to impact on the Employee’s Terms and Conditions: – Performance / Discipline issues – Restructure – 90 Day Trial Period – Bullying and Harassment – Medical Incapacity / Absenteeism Legal principals of “Procedural fairness” and “Substantive Justification”

Procedural Fairness Core Process and Timeframe Guidelines: – Employee must be advised of concerns and potential consequences as soon as possible – Employee must be advised of right to support/representation and sufficient opportunity to do so (2 working days is reasonable) – Employee must be given all information that Employer will use to make a decision prior to any meeting – Employee must be given the opportunity to respond to the information – Employer must give due consideration to the response (can range from a few hours up to a few days, subject to the issues at hand) – Decision must be justified (consistent with rules, custom and practice) – All parts of process recorded in writing

Procedural Fairness Example: 90 Day Trial Period – IEA signed prior to commencement (very important), and must include trial period provisions pursuant to s67A of the ERA 2000 – Raise concerns with Employee as soon as they arise, and advise of potential consequences – cannot be “as a bolt from the blue” – Keep a record of your discussion – Give Employee opportunity to improve behaviour – If behaviour or concern continues issue letter outlining previous concerns, potential consequences and allow opportunity to respond – Consider response, make decision and advise of outcome – Usual performance management procedures do not apply in trial period If unclear at any time, contact us for guidance

Procedural Fairness Example: Performance Management / Discipline – You may have had various informal meetings with EE (recorded in writing where EE is advised that continued concerns may lead to formal action / consequences) – Formally request EE to attend meeting, advise of concerns with specific examples, and advise of potential consequences and right to support – Conduct meeting – opportunity for EE to respond to concerns – Due consideration of response and advise of outcome, expectation, period of improvement and potential consequence – Give EE opportunity to improve behaviour (1-4 week, subject to issue) – If behaviour continues, at agreed review time, issue new letter outlining continuing concerns, and potential consequences, request to attend meeting (repeat of original process) – unless deemed as potential serious misconduct – Formal warnings could remain valid for up to 12 months If unclear at any time, contact us for guidance

Volunteer Workers Must use Volunteer Agreement so full terms are in writing (1) NZ Residents: will not be subject to PAYE for Food and Accommodation if; i. Only engaged for short duration (1 – 2 weeks at a time) ii. Receive no other reward other than Food and Accommodation iii. Continue to maintain a ‘home’ in another location during period of service If do not meet this criteria more likely to be considered as EE and thus: PAYE on value of benefit Paid at least minimum wage All other EE entitlements apply

Volunteer Workers Must use Volunteer Agreement so full terms are in writing (2) Overseas Visitors: will not be subject to PAYE for Food and Accommodation if; i. On valid Visitors Visa ii. Only engaged for short duration (generally 3 – 6 month – could extend to 12 months max) iii. Generally engaged through a valid intermediary (ACVE) iv. Clearly established reason for their presence on site (experience/training) ii. Receive no other reward other than Food and Accommodation iii. Continue to maintain a ‘home’ in native country during period of service If do not meet this criteria more likely to be considered as EE and thus: PAYE on value of benefit, Paid at least minimum wage, All other EE entitlements apply – if these apply must be on valid NZ Work Visa (ACVE - Aotearoa Cultural & Volunteer exchange)

On-Site Accommodation Serviced Tenancy Agreement - states full terms and conditions associated with accommodation - separate to IEA - provision of accommodation linked to period of employment - recovery of costs aligned to final pay Assessed Value -Requires PAYE value to be assessed and paid -Market Value “what a willing provider will accept from a willing customer” -Independent – Professional Assessment (MREINZ) -Appropriate discount for ‘limitations’ – no more than 40%

On-Site Accommodation Option 1: Rental Deduction after PAYE Option 2: PAYE on the assessed value of the Benefit taken from ‘Total Gross Income’ Assessed or actual costs of Electricity and Phone Accommodation Allowances

Questions? (07)