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Published on March 23rd, 2017 | by Sarah Williams

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Stay Informed on employment and health and safety law changes

Inform: March 2017


Fixed term and casual employment agreements (and when to use them)

All employers are required to provide employees with an individual employment agreement (IEA), but working out when to use a casual IEA and when to use a fixed term IEA may not be as straight forward as it sounds.

Fixed Term IEA?

A fixed term IEA can be used where an employer has a genuine reason, based on reasonable grounds, to employ on a fixed term basis, for example, covering for maternity leave or to complete a specific project.

Fixed term IEAs must specify:

  • The genuine reason for the fixed term;
  • The way the employment will end at the end of the fixed term; and
  • Why the employment will end in this way.

Where an employee is engaged for a fixed term, at the end of the fixed term, their employment will terminate. If the fixed term IEA is not correctly drafted, employment is allowed to run on and does not end at expiry of the fixed term, or if the employee is given the expectation of continuing work after the fixed term, there is a real risk that the employment relationship will be “ongoing”. In that case, the employer will only be able to end the employment relationship for “cause” (eg. redundancy, poor performance, disciplinary etc), and may also have additional obligations to the employee in terms of holidays and leave.

Casual IEA?

A casual employment relationship exists where an employee works on an “as and when required” basis only – that is, there is no expectation that work will be provided, or performed, on either party. A casual IEA should be drafted in essentially the same way as a fixed term IEA, and reflect that work is for short periods of engagement as the parties may agree from time to time. The terms of those engagements, including the reasons for the same, should also be recorded on each occasion that the employee is engaged to work.
Significant risk exists where an employee is labelled “casual”, but…

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What happens when an employee breaches a settlement agreement?

Employment relationship problems are commonly resolved by confidential settlement negotiations, resulting in a full and final settlement being agreed between the parties. The terms of the settlement can be captured in a Record of Settlement, signed off by a Ministry of Business, Innovation and Employment mediator, pursuant to s149 of the Employment Relations Act 2000 (ERA).

Settlements agreed this way are final, binding, non reviewable, and enforceable as though they had been determined by the Employment Relations Authority. Settlement terms commonly include confidentiality and “non disparagement” clauses, which may be enforced by way of compliance order and penalty for breach.

A recent decision by the Employment Relations Authority (Authority) related to the breach of such a term in a settlement agreed between an employee, Brooke Woodrow, and her ex-employer, the Wanaka Sun, a free local paper.

Case summary

Here, the parties had agreed to not make derogatory comments about each other to another person or organisation. However, after the settlement was signed and certified by a Mediator, Wanaka Sun was informed that Ms Woodrow had made derogatory comments about them at her new place of work. Another former employee of Wanaka Sun advised that Ms Woodrow had referred to her previous employer as a “f*ckwit” and said that “Wanaka Sun was a stressful place to work”.

Wanaka Sun raised a claim against Ms Woodrow for breach of this settlement term, and the Authority determined that it was unlikely that Ms Woodrow had used the alleged inappropriate language about her former employer, but held that she had made the comment about it being a stressful place to work. The Authority determined that this comment fell within the definition of “derogatory”, as negative inferences could be drawn from that comment.

Ms Woodrow had therefore, breached a term of the…

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Court guidance on new Hours of Work law coming

The first Employment Relations Authority (Authority) determination on the new hours of work legislation, introduced in April 2016, has been released and has escalated the matter to the Employment Court for decision.

Applications were lodged by two workers (Ms Doran and Mr Fraser) employed in two different McDonalds restaurants. Both employees sought to resolve concerns relating to availability provisions in their individual employment agreements (IEAs), and the requirements of section 67D of the Employment Relations Act 2000 (Act), which was introduced to regulate against so-called “zero hour contracts”.

The new law: availability provisions

Where an employee’s performance of work is conditional on the employer making work available to the employee, and the employee is required to be available to accept any work that the employer makes available, the Act provides that the relevant IEA (or collective agreement) must include an “availability provision”.

Per s67D, an availability provision can only be used where the employer has genuine reasons based on reasonable grounds for including it, in which case the IEA must specify the agreed hours of work. Perhaps most controversially, employers must now also pay “reasonable compensation” to employees for this availability. No definition of reasonable compensation is provided in the Act, but factors listed as considerations in determining whether compensation is reasonable include the number of hours the employee is required to be available, the proportion of these compared to the number of agreed hours, any restrictions that the employee suffers as a result of the requirement to be available, and their rate of pay. Notably, there is a “loophole” for salaried employees, whereby the parties can agree the employee’s remuneration includes compensation for the employee’s availability (provided minimum wage requirements are met…

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Domestic Violence – Victim’s Protection Bill

It’s no secret that domestic violence in New Zealand is a major issue in New Zealand. It affects one in three women, the Police attend a family violence incident every seven minutes and it costs New Zealand up to $8 billion a year.

Recently the Warehouse Group, ANZ and Countdown have acknowledged the effect domestic violence has in the workplace by implementing policies offering victims of domestic violence extra paid leave.

With the introduction of the Domestic Violence – Victim’s Protection Bill (Bill), the Government is now also acknowledging that what happens at home can affect the workplace. The Bill has passed through its first reading and is now before the Select Committee.

As it stands, the Bill, if enacted, will have an effect on the Employment Relations Act 2000 (ERA), the Health and Safety at Work Act 2015 (HSWA) and the Holidays Act 2003 (HA), as follows:
Per the ERA, employees who are victims of domestic violence would be able to request a variation to their working arrangements.The employer would have to respond as soon as possible, but not later than three months, after receiving the request and would only be able to decline requests on certain grounds.

Per the HSWA, a hazard would be redefined to include reference to a worker suffering domestic abuse, and would have to be eliminated/managed in the same way as any other hazard.In terms of reasonably practicable steps, PCBUs would need to consider policies on how to deal with domestic violence situations as well as training for health and safety representatives in supporting victims of domestic violence.

The HA would provide 10 days’ paid additional leave for victims of domestic violence, for the purpose of dealing with the effect of this.

The Select Committee will hear submissions on the Bill before making any necessary or recommended changes and sending it back to Parliament for its second reading.

We will keep you informed of its progress…

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Author: Kate Ashcroft
For: Copeland Ashcroft Law
SoapBox Group: Tauranga Thursday


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