As we close out 2023, many employers are buoyed by the new National led coalition government. In this article, we explore what this will mean for New Zealand’s employment, health and safety and immigration law over the next year and update you on the emerging themes we are seeing in workplaces.
Workplace laws under a National-ACT Coalition Government
- National and ACT agree on the following workplace law changes, which we expect to happen in 2024:
- Repeal the Fair Pay Agreements Act 2022 (and end fair pay agreement bargaining currently underway with six industries).
- Reinstate 90-day trial periods for all businesses (meaning those with over 20 employees would be able to use 90-day trial provisions with unjustified dismissal protections).
- Remove the requirement to pay Immigration NZ’s (INZ) “median wage” to meet Accredited Employer Work Visa (AEWV) requirements.
- Amend the Parental Leave and Employment Protection Act 1987 to allow parents to divide paid parental leave between them in the way that they think is best, eg taking this at the same time, one after the other or in overlapping instalments.
- Create a new visa category that will allow parents and grandparents sponsored by their children or grandchildren to apply for a multiple entry visa, allowing for travel over a period of five years. Finer details are to be agreed but National has said it would require visa holders to have health insurance for the duration of their stay, while ACT says visa holders will need to pay a $3,500 annual fee towards a public health fund.
- National has also indicated further immigration changes (although the coalition make up will impact progression of these policies) including:
- New visa categories.
- Priority processing services for fast tracking INZ applications.
- Doubling the Regional Seasonal Worker Scheme cap and exploring new countries for this and changing the Working Holiday Visa (WHV) Scheme, including increasing the age from 30 to 35 and allowing second and third WHVs for some workers.
Tikanga in the workplace
Recent Employment Court decisions regarding the application of tikanga/tikanga values in the workplace have highlighted the importance of employers applying these values appropriately for their workplace context, at least where they have committed to this or are otherwise asked to take account of cultural considerations by employees.
The Court has commented that in order to uphold tikanga/tikanga values in the workplace, effort must be applied and sustained from beginning to end of the employment relationship and this requires more than simple translations that seek to embed tikanga/Te Ao Māori in Pakeha concepts.
Employers are expected to engage appropriate Tikanga experts or cultural advisors to build on their understanding and application of the same.
Employee or Contractor?
Scrutiny of independent contractor arrangements by the Court continues and employers are well advised to review these arrangements to make sure they are fit for purpose.
Health and Safety
Mental health is firmly on WorkSafe’s radar. It is investigating complaints, and we anticipate a prosecution in respect of harm to mental health to happen soon.
Employers whose health and safety management plan does not deal with bullying, harassment, discrimination or psychosocial risks and mental health are likely to be exposed in this respect, with recent statistics indicating 29% of complaints to WorkSafe are mental health related.
WorkSafe will also continue its focus on key industries such as agriculture, construction, forestry, manufacturing, healthcare and social assistance according to its Harm Reduction Plan, including holding those at the top of organisations to account for health and safety failings.
Other law changes
There are also possible key law changes coming around:
- Human rights, proposing to make discrimination on the grounds of gender identity or expression, or variation of sex characteristics unlawful, and to include an obligation to make reasonable accommodations for all LGBTQIA+ people in the workplace; and
- Privacy, proposing changes including a new notification obligation on an agency when it collects personal information indirectly, to update New Zealand’s privacy laws in line with international best practice. Under the new principle the collecting agency would be required to notify an individual of a range of matters, including its name and address, the purpose of collection, and rights of access to and correction of information.
Immigration
Accredited employers can expect Immigration New Zealand (INZ) to be completing audit checks (INZ targets are that this will be on 15% of accredited employers each year) on accreditation and general immigration requirements including to ensure that migrant workers are not being exploited. These checks were expected, after INZ granted accreditation to numerous employers at pace and without any deep review of the applications for these.
As such, employers who are audited are well advised to seek advice in engaging with INZ as their accreditation is at stake. INZ has advised that as of 6 November 2023, 94 employer accreditations have been revoked and 21 suspended, following these checks.
The list of immigration requirements that employers will need to keep on top of continues to grow. The Worker Protection (Migrant and Other Employees) Bill (Act) is scheduled to come into force from 6 January 2024.
This Act will allow MBIE/INZ to raise a new strict liability infringement offence where a migrant worker is employed in a manner that is inconsistent with the conditions on their work visa or where a migrant worker is employed when they do not hold an appropriate visa.
The finer details of how MBIE will operationalise the Act has not been released yet, however it is likely that the infringement penalty ($3000 per worker for companies) will be added to existing penalties that can be raised.
The offence is widely worded and captures scenarios including where a migrant worker is: paid below the wage rate, working outside the location or in a role that is not the role, set on their Accredited Employer Work Visa.
Keeping up to date with changes
As changes come into play with the new government, employers can maximise the opportunities presented by changing workplace laws by seeking the right advice and documentation to support this, ensuring they remain competitive in the current market and managing risk appropriately amidst the headwinds that business faces.
