A new government was sworn in on 26 October this year promising a number of potential changes to employment law in New Zealand. The first of these will likely be the extension of paid parental leave to 22 weeks in 2018 and 26 weeks in 2020.
The draft Employment (Pay Equity and Equal Pay) Bill was released for consultation in April this year. The purpose of the Bill is to ensure that pay equity imbalances in female dominant workforces can be addressed
In 2016, legislative changes were made to prevent “zero hours contracts”, i.e. the practice where employees did not have guaranteed hours of work, but were required to be available to take on any work their employer made available, making it hard to plan their finances and personal lives.
In the first test case since the legislative change, McDonald’s has now successfully defended the union’s claim that McDonald’s employment agreements contained an “availability provision”. The union argued that McDonald’s had an availability provision in its employment agreement and that it did not provide for reasonable compensation for the requirement to work additional hours. The union’s claim was rejected, because employees were not “required” to work additional hours, instead, any request that an employee work additional hours could be turned down.
Elections take place in September this year in New Zealand with National and Labour as the two major political parties. If there is a change of government and Labour obtains a majority, we may see the introduction of a living wage for public service employees as well as Fair Pay Agreements (a common set of terms and conditions applying to a particular industry).
A bill is currently being considered by the New Zealand parliament, which would allow high income earners to contract out of the personal grievance provisions of the Employment Relations Act 2000. This intention behind the Bill is to remove the threat of costly personal grievance claims for employers on the basis that high earning employees should arguably have the skills and bargaining power to be able to negotiate the terms of their employment and do not require the protection of the personal grievance regime.
An “injured” employee who took time off from work and was caught by a private investigator to be in a fit and healthy condition, received a penalty in the Employment Relations Authority, which was recently enforced by the Employment Court.
International companies that have New Zealand based employees may now be able to enforce their choice of foreign law in employment agreements should an issue arise. The New Zealand Court of Appeal has found that the express specification of foreign law in an employment agreement should be the relevant law to apply before assessing whether any conflict of law exceptions apply.
In New Zealand, the Christmas holiday period is the main summer holiday and many business close from 24 December through to 7 January, and often operate with reduced staff for much of January.
There is little guidance in New Zealand on how courts should approach penalties for companies that do not adhere to minimum employment standards, particularly for multiple breaches. However, a recent New Zealand Employment Court case, demonstrates an increased willingness to impose high penalties for multiple failures of minimum standards.
A New Zealand Teaching Association (union) has claimed that employees are being “forced” to accept fixed term contracts. The Teaching Association reports that only 15% of new teaching graduates are being employed in permanent positions, with many schools relying on fixed term contracts as a way to manage funding from year to year or to “trial” new teachers. In New Zealand, fixed term employment contracts can only be used where an employer has a genuine reason based on reasonable grounds for limiting employment to a fixed term. The consequences of not complying with the requirements for a fixed term contract are that if an employee challenges his/her termination, the employer is not able to rely on the fixed term to justify that employee’s termination. The practical effect of this will be that the employee relationship is permanent, and the employer could be ordered to pay compensation for an unjustified dismissal or to reinstate the employee.