Workplace law update

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Kate Ashcroft, Partner, Copeland Ashcroft. Kate acts for employers across a wide range of industries nationwide, giving advice and providing representation in disputes.

Many of us thought 2020 was the year of Covid, not realising just how much Delta would up the ante. The impact on workplaces has been huge, from closed borders compounding labour shortages, to vaccine mandates, and having to navigate untested waters under pressure, balancing legal considerations involving almost all workplace laws, from privacy and human rights to health and safety.

Statistics demonstrating the impact of Covid on everyone’s mental health are abundant, and many people have reconsidered their priorities and intent for the future. These factors are supporting New Zealand’s early experience of what has been termed “The Great Resignation”.

Closing out 2021: Where are we?

In summary, the takeaways for employers are:

Clear communication with employees about your Covid workplace plan, from vaccination to protecting their safety, has never been more important – if you do not already have policies in place around this, you should.

Awareness of mental health impacts of work has increased and is a focus for WorkSafe. Your health and safety management plan needs to address this if it doesn’t already – training on psychosocial risks, and what this means in your workplace is a place to start.

Workplace culture to support retention and recruitment has also never been more important. Think about what makes you an employer of choice, and how you communicate this to the market.

Employees are in demand, and they know it. They are looking for their best work life. Expect your team to be looking elsewhere if you haven’t taken steps to front foot that and secure their commitment to you. This is almost always more effective (and often cheaper) than having to counter a potential new employer’s offer.

Check that your policies and documentation are fit for purpose. If the way you work has changed, do these reflect your “new normal”? For example, if you have employees regularly working from home now, have you done a health and safety risk assessment of their home workplace and covered expectations where they are working from home in a policy? Have you incorporated a requirement for vaccination to your recruitment documentation?

What’s on the horizon for 2022: prepare for change

• Covid management key in workplaces
Covid will still be a “thing”, and as we settle into the new Covid Protection Framework, with businesses and borders opening up, responsibility for managing the risks relating to the spread of Covid will increasingly land with employers.

• Immigration changes
The Government has announced that all employers are required to be accredited with Immigration New Zealand and will come into effect in July 2022, with applications opening in May. If you employ migrant workers, being prepared early ensures the application process is as seamless as possible, given the high volume of applications expected.

• Holidays Act changes
In terms of new employment laws, the Government has indicated changes to the Holidays Act, adopting recent Working Group recommendations.

This will impact all employers and payroll providers and could see implementation of yet another “leave pay” calculation, as well as extended leave entitlements, and payslips to be required for all employees.

• Fair Pay Agreements
We anticipate the introduction of a new fair pay agreements framework, which aims to lift minimum industry standards.

Fair pay agreements will effectively operate as an “award” system similar to Australia and will set minimum terms and conditions for workers across an industry or occupation by a prescribed framework to bargain for these.

• Sexual harassment claim time extended
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill has progressed through its first reading and proposes to extend the timeframe for raising a sexual harassment personal grievance claim from 90 days to 12 months.

The Bill was introduced on the basis that sexual harassment claims have special circumstances including in terms of the impact for claimants, that potentially make the shorter timeframe unfair.

• Challenge to independent contractor arrangements
Scrutiny of independent contractor arrangements will continue, following several Employment Court decisions recently where contractors have successfully argued they are employees. This includes industries that have almost exclusively operated using contractors, like construction and couriers. Employers should look at their arrangements here to avoid potentially significant claims.

Preparation is key

After two years of necessary adjustment, astute employers will be well advised, and have forecasted for upcoming potential changes.

Prepare early, as it’s even more important to get it right in today’s Labour market, to minimise the risk of potential expensive and time-consuming claims.

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Kate Ashcroft
Kate Ashcroft
Kate Ashcroft, Partner - Copeland Ashcroft Kate acts for employers across a wide range of industries nationwide, giving advice and providing representation in disputes.

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