Changes to the Employment Relations and Holidays Act come into effect on 1 April
Changes to the Holidays and Employment Relations Acts come into effect on 1 April 2011. The Department of Labour has produced this guide to these important law changes.
Changes to the Holidays Act will provide a greater choice for workers enabling them to cash up to a week of annual leave every year. This, however, cannot be a negotiated term or condition of the employment agreement and each employee will need to make a request and come to an agreement with their employer before they arrange this.
There’s also more flexibility around public holidays as employers will be able to reach agreement with employees to transfer a public holiday to another working day if this better suits both parties.
The amendment to the Holidays Act will also allow employers to seek proof of sickness or injury from an employee for less than three consecutive calendar days off without reasonable grounds to suspect that the sick leave is not genuine. The employer will need to let their staff member know that proof is required and also agree to meet any expenses incurred in obtaining it.
A formula will be introduced for calculating leave and holiday entitlements for those whose hours of work or pay vary – called Average Daily Pay. This will be available to employers if it is not possible or practicable to assess their employee’s relevant daily pay or if the employee’s daily pay varies within the pay period.
The changes to the Holidays Act come into effect on 1 April 2011 and are designed to give both employers and employees greater choice as to how they manage their leave.
However one change took effect as soon as the legislation was passed in November 2010 – relating to the treatment of holidays and leave during a mandatory ‘closedown’ or shut down period. It means that if your business shuts its doors for a period, such as during Christmas or Easter, then your employees will be entitled to be paid for any public holidays that they would otherwise have worked if the business was operating.
There are a number of key changes to this law which you need to know about. One is the extension of the 90-day trial period to all businesses – this is already in place for businesses with fewer than 20 staff but it will now been extended to include all businesses regardless of how many staff are employed.
A number of changes have been made in respect of personal grievances.
When considering personal grievance claims the Employment Relations Authority and Employment Court will now need to consider whether the actions of the employer were what a fair and reasonable employer 'could' have done in all the circumstances of the case - known as the test of justification. This is intended to recognise that there is a range of fair and reasonable responses that could be made by an employer in any situation.
Amendments have been made to set out minimum requirements of a fair process that the Authority and Court must consider when deciding whether an action or dismissal was justified. The changes also make it clear that the Authority or Court should not find that a substantially justified action or dismissal is unjustified due to minor and technical defects in the employer’s processes.
The Authority must also now give priority to previously mediated claims and will be able to filter out early any claims that it considers frivolous or vexatious.
The amendments to the Employment Relations Act also affect union access to workplaces and collective bargaining.
From 1 April, union representatives will require an employer’s consent before entering a workplace to ensure that unscheduled visits don’t disrupt operations or interrupt production deadlines. However, employers cannot just refuse access — consent can not be unreasonably withheld, and written reasons for a refusal must be provided.
Employers will also be able to communicate with their employees while collective bargaining is under way – this effectively codifies case law. Such communications must however be in good faith and not designed to derail the bargaining process.
The law will also extend the role and powers of labour inspectors who monitor and enforce the minimum statutory code in workplaces.
All of these changes to come into force on 1 April. However, employers will have until 1 July to meet a new requirement to retain a signed copy of each employee’s individual employment agreement – or a current signed copy of their terms and conditions. A copy will still need to be held even if the employee has not signed the document.
A guide to the changes will be available on the Department’s website to help your business understand how you will be affected. Make sure you sign up to our email database to receive regular updates as information is developed: http://dol.govt.nz/common/subscribe/ .
Along with the Employment Relations and Holidays Acts changing the minimum wage is going up. From 1 April 2011, the adult minimum wage will increase to $13.00 an hour. The new entrants’ minimum wage and the training minimum wage will increase to $10.40 an hour.
Find out more about the changes at: http://dol.govt.nz/er/