Employment Law Julie Hardaker

Employment Law Framework statutes + employment agreement terms + implied terms + case law

Legislation Affecting Employment Relationships Employment Relations Act 2000 Employment Relations (Flexible Working Hours) Amendment Employment Relations (Breaks and Infant Feeding) Amendment Act Holidays Act 2003 (+ ANZAC Day Act and Waitangi Day Act) Health & Safety in Employment Act 1992 Minimum Wage Act 1983 Minimum Wage (New Entrants) Amendment Act – 1 April 2008 Wages Protection Act 1983 Parental Leave & Employment Protection Act 1991 Privacy Act 1993 Human Rights Act 1993 Injury Prevention Rehabilitation and Compensation Act 2001 Equal Pay Act 1972 Bills of Rights Act 1973 Electronic Transactions Act 2002 Volunteers Employment Protection Act 1973 Protected Disclosures Act 2000 Disabled Persons Employment Promotion Act 1960 KiwiSaver Act 2006 Shop Trading Hours Repeal Act 1990. Industry Training Act 1992 & Modern Apprenticeship Training Act 2000 Trade Unions Act 1908 State Sector Act 1988 Police Act 1958 Education Act 1989 Act – 1 July 2008 Smoke-free Environments Act 1990 Criminal Records (Clean Slate) Act 2004

Common Law Case Law Implied Terms Employee’s duty of fidelity, good faith and honesty Mutual duty of trust and co-operation Employer’s duty to provide work , provide equipment and pay wages Employer’s duty to provide safe workplace Employee’s duty of personal service Employee’s duty of obedience Employee’s duty of reasonable competence Employee’s duty of indemnification Employer’s duty to indemnity Employee’s duty of reasonable behaviour No duty on employer to give character reference Case Law

Minimum Code Pay wages without deduction unless authorised by law/by consent Paid at least the minimum wage ($12.75 per hour) Equal pay for same job 4 weeks paid holidays per year or 8% 11 paid public holidays per year 5 days paid sick leave per year (accrue to 20 days)

Minimum Code 3 days paid bereavement on each occasion Paid T1.5 for work on public holidays 14 weeks government paid maternity leave ($441.62 per week) Provide unpaid parental leave up to 52 weeks and hold job open (unless key position) Provide unpaid leave for voluntary service/training in the Armed Forces

Employment Relations Act Applies to all employment relationships/provides the rules that relationship must operated under Defines employment relationship Cannot opt out Good faith defined Rules about unions/collective bargaining/strikes Employment agreements Trial Periods Employment problems and personal grievances/resolution processes/compensation Establishes specialist judicial bodies Penalties Restructuring Powers of Labour Inspectors

Employment Relations Act Both parties must act in good faith wider than trust and confidence requires parties to be active and constructive in establishing and maintain productive employment relationship responsive and communicative Must recognise unions, allow access/collective bargaining if union initiates Must have written individual employment agreements containing certain terms Restructure If vulnerable – transfer at employees option on same terms If other – process to preserve job

Employment Relations Act Personal grievances Unjustified dismissal Unjustified disadvantage Discrimination Sexual/racial harassment Duress relating to union membership Reasons and process Justified = are employer’s actions what a fair and reasonable employer would have done Remedies Reinstatement Loss of wages/benefits Humiliation, injury to feelings Costs

Health & Safety Take all practicable steps to provide safe and healthy workplace Eliminate, isolate, minimise hazards (can include person’s behaviour/stress/person affected by drugs) Must report accidents (injury or could have, illness (physical/mental), death) to OSH within 7 days Criminal prosecution/fines/strict liability No insurance permitted

Employment Issues Facing SMEs Knowledge about legal requirements Compliance costs Rigid legal framework of rules and processes Protecting IP and “my business” Employees don’t work out/don’t fit Fear of personal grievance affects profit/growth/health/happiness

Addressing Issues Probation periods/trial periods Fixed term or casual arrangements Protect confidential information Ownership of IP Restraint of trade Flexibility Creative leave (birthday/work life days) Creative pay (perf pay bonus/shares)

Management Techniques Be there Create the right culture Consult/collaboration Engage employees – individually & team Reward – cash alone doesn’t work Embrace change Get in early if there is a problem and managing that problem Have processes and systems

Recruitment – pitfalls What job do I need done? What about fit? “Can do” Kiwi style Interviews What can I ask? What should I ask? References – checking, asking the right questions Human Rights Act

Useful Tips Get some help from the start Work together Culture is important Protect your ideas and your asset Act early when there is a problem Grow your support as your business grows