HARD CASE | Big law changes on way for employers

A warm welcome to March’s Hard Case. By way of introduction, I’m John Mezger, a business specialist at Aspiring Law – Director Janice Hughes has handed over the reins of her column to me this month to provide a heads up on the law changes facing workplaces. And, there are some biggies.

If you’re in business and employ staff, the new rules heading your way are employment-focused – and, you need to be not only across them, but actively prepared. The latest raft of reforms comes via the passing of two pieces of key legislation just before Christmas: the Employment Relations Amendment Act 2018 and the Domestic Violence – Victims’ Protection Act 2018.

First up let’s look at something that is entirely new on the law books and for workplaces: paid leave for those affected by domestic violence. Despite the fact this comes into force on April 1, I’ve noticed businesses, generally, are still unsure – or, in many cases completely unaware – of this new legislation, and their obligations under it.

Paid leave for family harm victims

In essence, the Act enables any employee affected by domestic violence to take up to 10 days’ paid leave per year. The entitlement extends also to those who live with a child who’s been subjected to domestic violence, and, in all instances, is irrespective of when the harm occurred. While, as is the case with the likes of sick leave, employees must have worked for a business for a certain period before being eligible, in all other cases the employer is obliged to pay.

Employees will also be able to request a short-term variation (two months or less) to their employment agreement – including hours of work, duties or location; in short, changes that, in the employee’s view, will enable them to deal with the effects of domestic violence. An employer, who’ll be entitled to seek proof from an employee that they are affected by domestic violence, must respond urgently, and notify the employee within 10 working days whether or not their request for a variation is approved. There are some grounds for refusal, but any request mustn’t be turned down unreasonably.

Among further obligations, employers will be duty-bound to provide the affected employee information about appropriate specialist support services. It will also be unlawful for an employer to treat adversely an employee on the grounds they are, or are suspected of being, affected by domestic violence.

Are you sorted?

Meanwhile, the first phase of the Employment Relations Amendment Act is already in effect, and centres on unions and collective bargaining. Part two arrives on May 6, and will bring the reinstatement of prescribed rest and meal breaks; added protections for vulnerable workers; and, the end of 90-day trial periods for businesses with 20 or more employees.

With the number of smaller businesses – particularly in the likes of retail and hospitality – in our parts, the reinstatement of prescriptive breaks is significant, and it’s critical that owners and managers turn their minds to this now, if they haven’t already.

The rules vary depending on the hours employees work each day. As a guide, under the new laws, an employee will be entitled to: a paid 10-minute break after the first two hours worked; a 30-minute meal break after four hours; and a further 10-minute break after six hours. If the employee works longer than eight hours, the breaks, duration and frequency repeat. While it’s possible for both parties to negotiate when the breaks happen, they can’t be of shorter duration.

The foreseeable concern for local businesses is rostering. The incoming laws could mean, at the extreme, some businesses have to close for periods during the day to accommodate the mandatory breaks, unless they can find a lawful workaround.

While the changes to the 90-day trial period won’t affect many employers in our community, it’s timely to remind businesses there are rules around how they’re conducted. Remember, a trial period can only be relied upon if it’s agreed to in an employment agreement that was signed prior to the employee starting work – and that includes any pre-employment staff orientation and training.

May will also bring greater protections for particular workers and contractors who are deemed vulnerable: those working in catering, caretaking, cleaning and laundry service roles. Under the incoming laws, when a business is restructured or sold, they’ll be entitled to continue on the same terms and conditions as their existing agreement.      

Don’t forget, either, as of April 1, the minimum wage increases from $16.50 per hour to $17.70. The starting-out and training minimum wage rises, too, from $13.20 to $14.16 per hour. The Government has also set indicative minimum wage increases in 2020 to $18.90 and $20 in 2021, which is expected to benefit more than 220,000 people, particularly those in the seasonal and hospitality industries.

The clock’s ticking

Remember, it’s important that all of the new laws are accurately reflected in agreements, and that existing clauses don’t contradict them. In regards to the new DVVP Act, employers will need to also ensure they have the correct procedures in place, and support information at hand before the end of this month.

These changes are right upon us, and look set to alter the employment landscape quite significantly, not just for 2019, but well beyond. If you haven’t already, don’t leave it any longer to haul out your employment contracts for a thorough check, and careful amendment. And, if you’re in any doubt, be sure to take timely advice.

Aspiring Law will be running BizClub® workshops to discuss the changes, and how to best prepare your business from a legal perspective.

To register your interest, or, if you’re keen to take advice now, please email me on john@aspiringlaw.co.nz, or give me a call on 03 443 0900.


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