new employment agreement templates 21 May 2019
In accordance with the new Employment Relations Amendment Act we have updated our Employment Agreement Templates you have purchased from us in the past.
Changes in the new Agreements cater for:
Update your Employment Agreements and ensure your business has the best protection under current legislation.
www.Employers.co.nz/agreements
Changes in the new Agreements cater for:
- Probationary Periods
- 90 Day Trial Periods
- Domestic Violence Leave
- Rest and Meal Breaks
- Availability Periods
- Shift Cancellations
Update your Employment Agreements and ensure your business has the best protection under current legislation.
www.Employers.co.nz/agreements
Easter and Anzac day - public holidays
April 2019
This year we have Easter Sunday being observed on April 21st. This puts the public holidays of Good Friday and Easter Monday on Friday 19th and Monday 22nd April respectively. The same week also hosting ANZAC Day on Thursday April 25th. Easter Sunday is not a public holiday.Good Friday, Easter Sunday and Anzac Day until 1pm are also restricted trading days.
August 2016 saw the Shop Trading Hours Act 1990 amended. This empowered local councils to have their own policies around restricted trading days and locations. Certain industries always had exemption anyway,but now you should get in touch with your local body to get the local rules.
Worth noting that the amendment in 2016 also gives the right to employees to refuse to work on Easter Sunday.
August 2016 saw the Shop Trading Hours Act 1990 amended. This empowered local councils to have their own policies around restricted trading days and locations. Certain industries always had exemption anyway,but now you should get in touch with your local body to get the local rules.
Worth noting that the amendment in 2016 also gives the right to employees to refuse to work on Easter Sunday.
employment records
Employment New Zealand has raised concerns that many employers are failing to keep complete and accurate records including wages, time, leave, employment contracts and more.
As an employer, by law you must:
Penalties for non-compliance can be up to $100,000 for a company. If an employer gains financially because they haven’t complied with the law, penalties can be higher.
Employment New Zealand has information about your legal obligations, the penalties and free resources available.
To talk to Employment New Zealand call 0800 20 90 20
As an employer, by law you must:
- be able to show that you’ve correctly paid your employees all minimum employment entitlements eg at least the minimum wage rate and four weeks annual holidays
- keep each employee’s records for seven years even if they have left
- ensure all employees have complete and current employment contracts.
Penalties for non-compliance can be up to $100,000 for a company. If an employer gains financially because they haven’t complied with the law, penalties can be higher.
Employment New Zealand has information about your legal obligations, the penalties and free resources available.
To talk to Employment New Zealand call 0800 20 90 20
payday filing
PAY DAY Filing - are you ready to shift to Pay Day Filing?
If you intend to payday file in myIR, let us know by opting in using myIR. To find out more, watch our How-to videos
Other handy videos you’ll find on our How-to videos page include:
Payroll Officers and Business Owners
If you’re a payroll officer, payroll manager, CFO or tax manager our payday filing seminars are a must for you. There are still places available around the country.
Register for a seminar today
If you intend to payday file in myIR, let us know by opting in using myIR. To find out more, watch our How-to videos
Other handy videos you’ll find on our How-to videos page include:
- Filing using the file upload method and
- Filing using the online entry method.
Payroll Officers and Business Owners
If you’re a payroll officer, payroll manager, CFO or tax manager our payday filing seminars are a must for you. There are still places available around the country.
Register for a seminar today
even the government can get recruiting wrong!
20th September 2018
Poor recruitment process from the Government costs the tax payer $107,000. Some big firms still falling short of minimum employment standards, and others going great and leading the way. Also some significant changes in our Toolbox to note.
Poor recruitment process from the Government costs the tax payer $107,000. Some big firms still falling short of minimum employment standards, and others going great and leading the way. Also some significant changes in our Toolbox to note.
daylight savings starts 30 September 2018
Daylight Saving begins this month on Sunday 30th September at 2.00 am. Clocks are put forward one hour to 3.00 am.
Any employees who are working during that time will be working an hour less, but have to still get paid for that skipped hour as if it was worked.
Any employees who are working during that time will be working an hour less, but have to still get paid for that skipped hour as if it was worked.
reminder - minimum wages has changed
The minimum wage applies to all paid employees aged 16 and older, although there are different rates if your employee is 16 or 17 and is new to the workforce or if they are completing training.
The information on this page contains the new minimum wage rates that apply from 1 April 2018.For further details, please read our news article.
As an employer, you’ll need to keep up-to-date with the latest minimum pay rates and pay your employees at least the current minimum rate. This rate stands even if your employee only works a few hours for you each week or has little responsibility at work.
There are three rates:
Current minimum wage rates:
The rates are reviewed every year. This table sets out the before-tax minimum wage pay rates that apply from 1 April 2018.
Minimum wage
Hourly rate
8-hour
40-hour week
Adult rate
$16.50
$132.00
$660.00
Starting out and training rates
$13.20
$105.60
$528.00
Minimum wage rates (external link) — Employment New Zealand
Adult minimum wage The adult minimum wage applies to all employees aged 16 and over who aren’t starting-out workers or trainees, and all employees who are involved in supervising or training other employees.
This is the minimum wage most widely used by Kiwi businesses of all shapes and sizes.
Starting-out wage The starting-out wage applies solely to workers aged between 16 and 19 and who are entering the workforce for the first time.
Starting-out workers are:
Employing school-age workersThere is no minimum wage for employees who under 16 years of age. If you employ under-16s, you must not let their work get in the way of attending school.
ExemptionsA small amount of people hold an exemption from the minimum wage, eg prison inmates and some apprentices. These links give full details:
Minimum wage rates (external link) — Employment New Zealand
Minimum wage exemptions for people with disabilities (external link) — Employment New Zealand
Agricultural industry (external link) — Employment New Zealand
If you’re unsure how much you should be paying your employees, or think you might be paying too little, contact Employment New Zealand for advice.
Source: Ministry of Business, Innovation and Employment 0800 20 90 20 — Employment New Zealand
Paying fairly
In addition to paying the legal minimum wage or higher, you’ll need to ensure your pay policies and practices are as fair as possible.
It’s important to remember that waged employees need to be paid for actual hours worked. This means paying employees at least the minimum hourly wage for any extra time worked.
Paying employees fairly also means:
The information on this page contains the new minimum wage rates that apply from 1 April 2018.For further details, please read our news article.
As an employer, you’ll need to keep up-to-date with the latest minimum pay rates and pay your employees at least the current minimum rate. This rate stands even if your employee only works a few hours for you each week or has little responsibility at work.
There are three rates:
- Adult minimum wage
- Starting-out wage
- Training minimum wage
Current minimum wage rates:
The rates are reviewed every year. This table sets out the before-tax minimum wage pay rates that apply from 1 April 2018.
Minimum wage
Hourly rate
8-hour
40-hour week
Adult rate
$16.50
$132.00
$660.00
Starting out and training rates
$13.20
$105.60
$528.00
Minimum wage rates (external link) — Employment New Zealand
Adult minimum wage The adult minimum wage applies to all employees aged 16 and over who aren’t starting-out workers or trainees, and all employees who are involved in supervising or training other employees.
This is the minimum wage most widely used by Kiwi businesses of all shapes and sizes.
Starting-out wage The starting-out wage applies solely to workers aged between 16 and 19 and who are entering the workforce for the first time.
Starting-out workers are:
- Aged 16-17 and have worked for you for less than six months.
- Aged 18-19 and have been paid a specified social security benefit for six months or more, and who haven’t yet completed six months continuous employment with any employer since they started being paid a benefit. After six months continuous employment with a single employer, they must be paid at least the adult minimum wage rate.
- Aged 16-19 and required by their employment agreement to undertake industry training for at least 40 credits a year to become qualified.
Employing school-age workersThere is no minimum wage for employees who under 16 years of age. If you employ under-16s, you must not let their work get in the way of attending school.
ExemptionsA small amount of people hold an exemption from the minimum wage, eg prison inmates and some apprentices. These links give full details:
Minimum wage rates (external link) — Employment New Zealand
Minimum wage exemptions for people with disabilities (external link) — Employment New Zealand
Agricultural industry (external link) — Employment New Zealand
If you’re unsure how much you should be paying your employees, or think you might be paying too little, contact Employment New Zealand for advice.
Source: Ministry of Business, Innovation and Employment 0800 20 90 20 — Employment New Zealand
Paying fairly
In addition to paying the legal minimum wage or higher, you’ll need to ensure your pay policies and practices are as fair as possible.
It’s important to remember that waged employees need to be paid for actual hours worked. This means paying employees at least the minimum hourly wage for any extra time worked.
Paying employees fairly also means:
- Women and men must receive the same pay rates for doing the same or substantially similar work
- You cannot discriminate on the basis of an employee’s colour, race, ethnic or national origins, gender (including pregnancy or childbirth status), marital or family status, age, disability, religious or ethical belief, political opinion, sexual orientation or union activity.
queen's birthday - public holiday
Monday 4 June 2018 celebrates the Queen's Birthday in New Zealand. This is a Public Holiday, and the last national one until Labour Day in late October.
The usual rules apply; time plus one half payment rate for the hours actually worked, and if it would have been a working day for the staff member - an alternative holiday (day in lieu) also.
social media at work
May 2018
A recent social media outburst by a prominent rugby player who made unpopular remarks on homosexuality has raised the issue of an Employee's freedom of speech with respect to the rights of their employer.
This incident very quickly brought the employer into the limelight. The Employer formally addressed the issue, accepted the player's explanation but continued to say "Rugby Australia will use this experience as an opportunity to remind all employees of their obligation to use social media in a respectful way".
Staff have good faith obligations not to bring their employer or business into disrepute and that duty goes right to the heart of the employment relationship between the parties in terms of trust and loyalty. Nevertheless it is of great importance in today's modern society and particularly so in light of the recent media attention that businesses should have a very clear policy on social media behavior for all workers.
Please see below for our recommendations as a minimum. This should become part of your overarching "ICT policy" (Information, Communications & Technology) or be explicit clauses in your Employment Agreements.
Social Media Policy
A full ICT policy is available to download in the Employers Toolbox Library for members. Or for $20 non members can purchase this directly here
A recent social media outburst by a prominent rugby player who made unpopular remarks on homosexuality has raised the issue of an Employee's freedom of speech with respect to the rights of their employer.
This incident very quickly brought the employer into the limelight. The Employer formally addressed the issue, accepted the player's explanation but continued to say "Rugby Australia will use this experience as an opportunity to remind all employees of their obligation to use social media in a respectful way".
Staff have good faith obligations not to bring their employer or business into disrepute and that duty goes right to the heart of the employment relationship between the parties in terms of trust and loyalty. Nevertheless it is of great importance in today's modern society and particularly so in light of the recent media attention that businesses should have a very clear policy on social media behavior for all workers.
Please see below for our recommendations as a minimum. This should become part of your overarching "ICT policy" (Information, Communications & Technology) or be explicit clauses in your Employment Agreements.
Social Media Policy
- The Employer expects its employees to maintain a certain standard of behaviour when using social media. Social media includes; blogs, wikis, social networks, virtual worlds and, business networking sites, web-based forums or message boards for work or personal purposes.
- Unauthorised use of social media during work hours is prohibited on work or personal computers or devices. Use of social media may be permitted during breaks.
- Employees are not permitted to refer to the Employer in any social media forum except as expressly agreed by the Employer.
- Employees are not permitted to identify any person associated with the Employer's business except as expressly agreed to by the Employer and the person concerned.
- Employees are not permitted to disclose via any social media confidential information relating to their employment which includes but is not limited to; employment terms and conditions, policies, rosters, internal communications and any concerns or complaints which the Employee or another Employee may have against the company.
- Using or sharing libelous, defamatory, offensive, derogatory, racist or obscene remarks or content are strictly prohibited at all times.
A full ICT policy is available to download in the Employers Toolbox Library for members. Or for $20 non members can purchase this directly here
performance reviews software update
The Performance Review software within the Employers Toolbox has new functionality and tools to promote the flexibility in construction and implementation of reviews: Custom categories and online completion or reviews for all parties.
Key Performance Indicators (KPIs) are no longer required to be categorised, but also allow the user to add their own categories if required.
All KPIs are now created on one page as opposed to the four separate fixed category pages.
The online assessment portal now extends to the Reviewer person also. Both the Reviewer and Reviewee can now complete their assessments via a secure email invite.
These changes are live now for every Employers Toolbox member. These changes are also backward compatible with any custom templates you have already in place.
For more information please see the online helps files for the system or click here now.
Key Performance Indicators (KPIs) are no longer required to be categorised, but also allow the user to add their own categories if required.
All KPIs are now created on one page as opposed to the four separate fixed category pages.
The online assessment portal now extends to the Reviewer person also. Both the Reviewer and Reviewee can now complete their assessments via a secure email invite.
These changes are live now for every Employers Toolbox member. These changes are also backward compatible with any custom templates you have already in place.
For more information please see the online helps files for the system or click here now.
migrant worker rights
Employing Migrant Workers
It seems not a week passes without another story of a company getting fined for breaching minimum employment standards when employing migrant workers.
The latest are an Auckland construction company fined $19,000 for unlawful Employment Agreements and denying casual workers minimum rights, and a Napier petrol station $120,000 fine plus $132,000 for unpaid wages and holiday pay.
The Government's Labour Inspectorate regional manager David Milne says "It is the nature of the relationship that is important, not the label you give your employee in the employment agreement"
That important point meaning just because you have hired someone with a 'Casual Employment Agreement' doesn't necessarily mean they are in fact a casual employee. The nature of the work may in deed be deemed a permanent role.
Migrant workers have the same rights as any resident worker by law, and in some cases there are more minimum standards also. For example if they are here on a skilled migrant basis there will be a minimum salary threshold of $50,000 pa (subsequent to the raise in Jan 2018).
Having an eligible visa to work is also important. It is illegal to employ someone who is not entitled to work, and often work visas can be tied to a specific employer too.
Just as the Labour-led Government promised the increase in labour inspectors from 60 to 110 it is adequately demonstrated in the Employment Relations Authority with a constant stream of cases such as these on a regular basis.
At the very minimum get up-to-date legally compliant Employment Agreements with the best protection for your business, ensuring you use the correct type for the role; casual, fixed term or permanent.
These are all free to members in the Employers Toolbox, or can be purchased from $50 here.
It seems not a week passes without another story of a company getting fined for breaching minimum employment standards when employing migrant workers.
The latest are an Auckland construction company fined $19,000 for unlawful Employment Agreements and denying casual workers minimum rights, and a Napier petrol station $120,000 fine plus $132,000 for unpaid wages and holiday pay.
The Government's Labour Inspectorate regional manager David Milne says "It is the nature of the relationship that is important, not the label you give your employee in the employment agreement"
That important point meaning just because you have hired someone with a 'Casual Employment Agreement' doesn't necessarily mean they are in fact a casual employee. The nature of the work may in deed be deemed a permanent role.
Migrant workers have the same rights as any resident worker by law, and in some cases there are more minimum standards also. For example if they are here on a skilled migrant basis there will be a minimum salary threshold of $50,000 pa (subsequent to the raise in Jan 2018).
Having an eligible visa to work is also important. It is illegal to employ someone who is not entitled to work, and often work visas can be tied to a specific employer too.
Just as the Labour-led Government promised the increase in labour inspectors from 60 to 110 it is adequately demonstrated in the Employment Relations Authority with a constant stream of cases such as these on a regular basis.
At the very minimum get up-to-date legally compliant Employment Agreements with the best protection for your business, ensuring you use the correct type for the role; casual, fixed term or permanent.
These are all free to members in the Employers Toolbox, or can be purchased from $50 here.
anzac day - restricted trading
Published 7 April 2018 by EAL
This month we have ANZAC Day on Wednesday 25th April. ANZAC day is a Public Holiday and a restricted trading day until 1pm.
All workers are entitled to the Public Holiday. Full or part-time, casual or fixed term staff all have the same entitlements to take the holiday, although not all will be entitled to be paid.
For further information on Public Holidays or payments please see our recently updated eBook on Annual Holidays and Leave. For members this is publication is available for download in the Library section of the Employers Toolbox.
This month we have ANZAC Day on Wednesday 25th April. ANZAC day is a Public Holiday and a restricted trading day until 1pm.
All workers are entitled to the Public Holiday. Full or part-time, casual or fixed term staff all have the same entitlements to take the holiday, although not all will be entitled to be paid.
For further information on Public Holidays or payments please see our recently updated eBook on Annual Holidays and Leave. For members this is publication is available for download in the Library section of the Employers Toolbox.
training bond agreements
Published 7 April 2018 by EAL
Employers often wish to fund the further training and development of their employees for the benefit of both parties. Our team are often asked about the legal aspect of bonding a staff member to the business in these cases, is it legal and what time periods are acceptable
Unfortunately the answer isn't always as straight forward as we might like. Businesses can of course get a staff member to sign off on a bonding agreement and feel quite protected by that, but the test is really whether that agreement will be enforceable if tested by the Courts, and it's always a case-by-case decision.
A Bonding Agreement generally binds an employee to the Employer for a certain length of time at which point the parties agree the debt is paid and the Company has had sufficient benefit from the Employee's extended education.
Where the Employee is simply being trained for the job this is often viewed as only benefiting the Company and not the Employee. In this instance it could be deemed unfair and thus unlawful to bond them. However, if the Employee gains a formal qualification or equivalent industry recognised skill through the training which is clearly a benefit to themselves then the Business has a valid case to bond the Employee in order to gain value from the expense and investment they have incurred.
As with any agreement both parties must agree on the terms and conditions in the bond. This will vary on a number of variables with the particular course or training in question. The cost of the training, direct and indirect, length in time of the training, time off required, are weighed up against what is a reasonable length of time to bond the Employee to the Business in return.
Common practice is that it's generally accepted that bonding periods are usually less than 2 years in duration. However, longer periods do exist and can be agreed to by both parties. The trouble really begins when bonds get broken and the Employer seeks enforcement. If Courts deem the terms and conditions harsh and oppressive in relation to the training offered a bonding agreement isn't worth the paper it's written on.
We supply 2 bonding agreements in the Employers Toolbox Library section free to members. These can also be purchased separately on our website to non-members.
Employers often wish to fund the further training and development of their employees for the benefit of both parties. Our team are often asked about the legal aspect of bonding a staff member to the business in these cases, is it legal and what time periods are acceptable
Unfortunately the answer isn't always as straight forward as we might like. Businesses can of course get a staff member to sign off on a bonding agreement and feel quite protected by that, but the test is really whether that agreement will be enforceable if tested by the Courts, and it's always a case-by-case decision.
A Bonding Agreement generally binds an employee to the Employer for a certain length of time at which point the parties agree the debt is paid and the Company has had sufficient benefit from the Employee's extended education.
Where the Employee is simply being trained for the job this is often viewed as only benefiting the Company and not the Employee. In this instance it could be deemed unfair and thus unlawful to bond them. However, if the Employee gains a formal qualification or equivalent industry recognised skill through the training which is clearly a benefit to themselves then the Business has a valid case to bond the Employee in order to gain value from the expense and investment they have incurred.
As with any agreement both parties must agree on the terms and conditions in the bond. This will vary on a number of variables with the particular course or training in question. The cost of the training, direct and indirect, length in time of the training, time off required, are weighed up against what is a reasonable length of time to bond the Employee to the Business in return.
Common practice is that it's generally accepted that bonding periods are usually less than 2 years in duration. However, longer periods do exist and can be agreed to by both parties. The trouble really begins when bonds get broken and the Employer seeks enforcement. If Courts deem the terms and conditions harsh and oppressive in relation to the training offered a bonding agreement isn't worth the paper it's written on.
We supply 2 bonding agreements in the Employers Toolbox Library section free to members. These can also be purchased separately on our website to non-members.
asbestos exposure
Published 7 April 2018 by EAL
Asbestos exposure is cited as the number one workplace killer in New Zealand.
The Health and Safety at Work (Asbestos) Regulations 2016 are now in effect since April 4th 2018. The new regulations clearly put a duty on businesses to have asbestos management plans in place for their buildings and workplaces where asbestos is likely to be found.
If you are in the construction business or you work on client sites this means you should give your staff at least basic training in asbestos identification
Any friable asbestos and non-friable asbestos greater than 10m2 can now only be removed by a licenced person. This was illustrated recently when a Timaru farmer was fined $10,000 for demolishing an old chicken shed in November 2017.
In addition, businesses must develop an asbestos management plan where asbestos has been identified, or is likely to be. These plans are a written record of where asbestos is, or may be (if you presume it to be present) in a work site, what the plan of management is, and what you will do in the event of an emergency.
If you're in the construction industry WorkSafe recommend that "it is important that in any place of work where asbestos has been identified, is likely to be, or where the business ought to know it is present, there should be an asbestos management plan in place".
So if your business takes your workers to a site where you suspect there could be asbestos you need to be asking the owner if they have a management plan in place. An asbestos management plan should record where any identified asbestos or asbestos containing material is and how it is being managed.
Your Asbestos Management Plan needs to include the following:
Asbestos exposure is cited as the number one workplace killer in New Zealand.
The Health and Safety at Work (Asbestos) Regulations 2016 are now in effect since April 4th 2018. The new regulations clearly put a duty on businesses to have asbestos management plans in place for their buildings and workplaces where asbestos is likely to be found.
If you are in the construction business or you work on client sites this means you should give your staff at least basic training in asbestos identification
Any friable asbestos and non-friable asbestos greater than 10m2 can now only be removed by a licenced person. This was illustrated recently when a Timaru farmer was fined $10,000 for demolishing an old chicken shed in November 2017.
In addition, businesses must develop an asbestos management plan where asbestos has been identified, or is likely to be. These plans are a written record of where asbestos is, or may be (if you presume it to be present) in a work site, what the plan of management is, and what you will do in the event of an emergency.
If you're in the construction industry WorkSafe recommend that "it is important that in any place of work where asbestos has been identified, is likely to be, or where the business ought to know it is present, there should be an asbestos management plan in place".
So if your business takes your workers to a site where you suspect there could be asbestos you need to be asking the owner if they have a management plan in place. An asbestos management plan should record where any identified asbestos or asbestos containing material is and how it is being managed.
Your Asbestos Management Plan needs to include the following:
- where exactly your identified asbestos is located
- how you plan to manage the asbestos risks (eg remove it, encapsulate it with a false wall or paint, leave it alone as it is in good condition, etc)
- what procedures you will follow for when work is to be undertaken that may disturb the asbestos or asbestos containing material
- how you will record incidents or emergencies involving asbestos
- a timetable for managing asbestos exposure risks (eg priorities and dates for removal, reviews, circumstances and activities that could affect the timing of action) – which should be reviewed in six months, or after an incident or emergency
- procedures, including a timetable for reviewing and (if necessary) revising the asbestos management plan and asbestos documentation (note at a minimum this MUST be every five years)
90 day trials - calendar days
Published 01 Mar 2018
The 90 Day Trial Period is one of the items under review with the Employment Relations Act Amendment Bill 2018.
Currently the proposal is simply removing the validity of its use from Companies with more than 19 staff. Nothing else is proposed to change for the trial periods at this stage.
For firms with 20 or more employees, the traditional 'Probationary Period' for new staff members will be the way to go.
This remains an optional clause in our Employment Agreements within the Employers Toolbox online.
We take this opportunity to mention a useful feature in our online tools also: 90 Day Trial Period Calendar alerts.
The 90 day trial is 90 calendar days - not only working days. This can be less than 90 if you wish, but not more.
Our calendar reminder tool calculates the final day of this period, which can then be included in the Employment Agreement and also sets a reminder in the Employers Toolbox, or allows you to download to your calendar (Outlook, google etc)
The tool will set 2 reminders in the Employers Toolbox: one as a reminder 2 weeks prior to the end, and one for the day of expiry. For your own calendars it provides a calendar alert for the day with a reminder set at 2 weeks earlier.
This calendar tool appears in the Employers Toolbox when completing the schedule of personal terms in an Employment Agreement, in the Recruitment tools and also in the disciplinary process under the 90 Day Trial Period.
Non users of the Toolbox are welcome to use it also on this public web page: www.employers.co.nz/90day-trial-period-tools.aspx
The 90 Day Trial Period is one of the items under review with the Employment Relations Act Amendment Bill 2018.
Currently the proposal is simply removing the validity of its use from Companies with more than 19 staff. Nothing else is proposed to change for the trial periods at this stage.
For firms with 20 or more employees, the traditional 'Probationary Period' for new staff members will be the way to go.
This remains an optional clause in our Employment Agreements within the Employers Toolbox online.
We take this opportunity to mention a useful feature in our online tools also: 90 Day Trial Period Calendar alerts.
The 90 day trial is 90 calendar days - not only working days. This can be less than 90 if you wish, but not more.
Our calendar reminder tool calculates the final day of this period, which can then be included in the Employment Agreement and also sets a reminder in the Employers Toolbox, or allows you to download to your calendar (Outlook, google etc)
The tool will set 2 reminders in the Employers Toolbox: one as a reminder 2 weeks prior to the end, and one for the day of expiry. For your own calendars it provides a calendar alert for the day with a reminder set at 2 weeks earlier.
This calendar tool appears in the Employers Toolbox when completing the schedule of personal terms in an Employment Agreement, in the Recruitment tools and also in the disciplinary process under the 90 Day Trial Period.
Non users of the Toolbox are welcome to use it also on this public web page: www.employers.co.nz/90day-trial-period-tools.aspx
Minimum wage rise
Published 01 Mar 2018
The Minimum Wage will increase from 1 April 2018.
The Government is legally obliged to review the Minimum Wage annually. However, the new Government has already pledged to get it up to $20 per hour by 2020
From April 1 2018 the new minimum wage rates are:
Adult - $16.50 an hour
Starting-out - $13.20 an hour (up from $12.60)
Training - $13.20 an hour (up from $12.60)
Starting-out and training minimum wages are 80% of the adult minimum wage.
What you'll need to do: You and your staff can agree to any wage above the minimum rate. If you already pay above the minimum wage there is no obligation to increase it respectively.
Employees who are paid wages need to be paid for the actual hours they work. This includes any extra hours completed.
For Salaried staff you need to consider if they are being paid below minimum wage for any hour of work in the overall picture.
If your employment agreements are a few years old, you can use this as a chance to update them using our easy to use tool in our Employers Tool Box Agreement Builder. Note that it is a legal requirement to have a written employment agreement with all your staff.
For more information on minimum wage please see here.
The Minimum Wage will increase from 1 April 2018.
The Government is legally obliged to review the Minimum Wage annually. However, the new Government has already pledged to get it up to $20 per hour by 2020
From April 1 2018 the new minimum wage rates are:
Adult - $16.50 an hour
Starting-out - $13.20 an hour (up from $12.60)
Training - $13.20 an hour (up from $12.60)
Starting-out and training minimum wages are 80% of the adult minimum wage.
What you'll need to do: You and your staff can agree to any wage above the minimum rate. If you already pay above the minimum wage there is no obligation to increase it respectively.
Employees who are paid wages need to be paid for the actual hours they work. This includes any extra hours completed.
For Salaried staff you need to consider if they are being paid below minimum wage for any hour of work in the overall picture.
If your employment agreements are a few years old, you can use this as a chance to update them using our easy to use tool in our Employers Tool Box Agreement Builder. Note that it is a legal requirement to have a written employment agreement with all your staff.
For more information on minimum wage please see here.
employment relations amendment bill
8 February 2018
The anticipated changes to employment law have now been presented as a Bill to the House. The new Government claiming this will "restore fairness and balance into New Zealand workplaces". With the discussion that took place following the election it is no surprise to see the main thrust of the proposed change is to strengthen the position and bargaining power of unions, reduce flexibility in agreements with regard to rest breaks and pay scales, limit the operation of the 90-day trial period and require reinstatement as the primary remedy in personal grievance matters.
Some of the changes originally proposed on the campaign trail have been removed or modified. A good example is the planned removal of the 90-day trial period. The current proposal is to allow employers with fewer than 20 employees to continue to use the trial with the expectation that good faith processes will be followed. The Employment Court ruled that good faith processes had to be followed, including discussion of issues with new employees, providing help and assistance to improve and giving proper notice when termination within the trial period was considered. The Court certainly reduced the employer’s ability to ‘fire at will’ within the trial period and the proposed change will reinforce that view. Larger employers will have to review their recruitment, selection and onboarding strategy and processes to make sure they don’t get caught employing staff that cannot or will not perform to expectations.
The Bill contains a number of provisions to strengthen the role of unions in the workplace and there is little, if anything, specified that wasn’t anticipated as part of Labour’s very traditional commitment to and support of the union movement. Improved rights of access, paid time for delegates to do union business, employers being required to promote the role of the union and a reintroduction of the 30-day rule making any collective agreement applicable to new employees. The more significant change is the requirement to conclude a collective agreement and that employers must continue to bargain even if the talks are stalemated on one or more matters. For further advice on the likely impact of these changes for unionised workplaces please call us.
The change for rest breaks incorporates the changes contained in an earlier Bill. The arrangement for breaks is quite prescriptive unless the employer and employee agree otherwise. In essence there is a requirement to provide a paid 10-minute rest break, roughly every 4 hours of work and an unpaid meal break within the first 6 hours. Rest breaks can be timed to happen within these periods but if not specified then they are to be taken at the midpoint of the period i.e.
Between 2 hours and 4 hours – 10 minute break
Between 4 hours and 6 hours – 30 minute meal break
Between 6 hours and 8 hours – 10 minute break
Breaks continue after 8 hours work time as needed, following a similar pattern.
The Bill has to go through several stages before we will know the final requirements of the amendment. We will keep you informed and our Toolbox tools will be updated once the changes are confirmed.
eSigning employment Agreements
While traditionally people have put pen to paper for signing employment agreements and other business documents, a growth in technology has allowed for this to become modernised and the use of electronic signatures is becoming more popular with businesses as they move into a paperless environment.
An electronic signature is defined as "a method used to identify a person and indicate that person’s approval of that information" and while electronic transactions have been around for some time, the Electronic Transaction Act 2002 has now been consolidated into the Contract and Commercial Law Act 2017 (CCLA). Part 4 of the CCLA has modernised the language used in the Electronic Transaction Act 2002 and outlines the legal requirements that must be met when using electronic transactions and electronic signatures.
In order for the use of an electronic signature to be legally binding it must satisfy the requirements of the CCLA, these requirements are:
Who owns your emails?
A recent case tested the ability for a sacked employee to request all their email correspondence from their former employer.
The issue was brought before the Privacy Commissioner as the employee claimed the emails were personal to him and therefore he had a right to them.
The man who was a university academic was dismissed for serious misconduct and lost access to his email account on the day of his termination. Over a 12 month period of his employment which he requested it was estimated his mailbox contained around 12,000 emails, to which he argued he was entitled access to.
The university offered to provide certain specific emails upon request but not for the entire period as they deemed it an unreasonable request which would require them to review and assess every email to filter any commercially sensitive items.
The Privacy Commissioner agreement and declined the employee's claim.
If you get a request from a staff member (current or ex) you are required to consider it under 'Good Faith' obligations. However you also have to protect your business in terms of company intellectual property, commercially sensitive or confidential information and the privacy of other party information. In this instance it was denied since it was considered unreasonable and the ex employee was unwilling to negotiate.
Emails generated by employees during the course of their employment using the employer's system are property of the Employer. However, this doesn't mean the employee doesn't have access rights to them.
Employers Toolbox Updates
The Employers Toolbox has a number of new and updated features rolled out early this year. Read on for a run down of the changes.
New tab - "RECRUIT"A new section; Recruit, has replaced the Staff tab along the top toolbar of the Employers Toolbox. The Staff tab is now accessible from the Dashboard.
Recruitment is a new feature which contains a collection of all the relevant documents, eBooks and letters you will need when hiring staff or engaging contractors or volunteers.
Our publication 'How to Employ Staff' has also been substantially reviewed and revised last month.
Staff ChecksYou now have the ability to create checklists for your staff members. The concept is to assist in your management and administration of training, equipment issued or anything else you might wish to keep a list of.
You can create as many lists as you like from your settings screen.
A tick-box for each list you create will appear on each staff members screen and get ticked and un-ticked on that screen. If you delete a list from your Staff Settings screen you will also remove the respective tick-boxes from the staff screen.
eSign AgreementsAny document created from the Agreements section of the Employers Toolbox can now be electronically signed within the Toolbox system. This includes; Employment Agreements, Independent Contractor Agreements, Staff handbooks and any of your custom templates.
All the usual recommended processes of recruitment remain, eSigning simply removes the requirement for a physical printout of the Agreement and manual signatures. The Employers Toolbox has all the processes, security and storage mechanisms to manage this for you.
For an in-depth guide and instructions on the system please see this article.
The anticipated changes to employment law have now been presented as a Bill to the House. The new Government claiming this will "restore fairness and balance into New Zealand workplaces". With the discussion that took place following the election it is no surprise to see the main thrust of the proposed change is to strengthen the position and bargaining power of unions, reduce flexibility in agreements with regard to rest breaks and pay scales, limit the operation of the 90-day trial period and require reinstatement as the primary remedy in personal grievance matters.
Some of the changes originally proposed on the campaign trail have been removed or modified. A good example is the planned removal of the 90-day trial period. The current proposal is to allow employers with fewer than 20 employees to continue to use the trial with the expectation that good faith processes will be followed. The Employment Court ruled that good faith processes had to be followed, including discussion of issues with new employees, providing help and assistance to improve and giving proper notice when termination within the trial period was considered. The Court certainly reduced the employer’s ability to ‘fire at will’ within the trial period and the proposed change will reinforce that view. Larger employers will have to review their recruitment, selection and onboarding strategy and processes to make sure they don’t get caught employing staff that cannot or will not perform to expectations.
The Bill contains a number of provisions to strengthen the role of unions in the workplace and there is little, if anything, specified that wasn’t anticipated as part of Labour’s very traditional commitment to and support of the union movement. Improved rights of access, paid time for delegates to do union business, employers being required to promote the role of the union and a reintroduction of the 30-day rule making any collective agreement applicable to new employees. The more significant change is the requirement to conclude a collective agreement and that employers must continue to bargain even if the talks are stalemated on one or more matters. For further advice on the likely impact of these changes for unionised workplaces please call us.
The change for rest breaks incorporates the changes contained in an earlier Bill. The arrangement for breaks is quite prescriptive unless the employer and employee agree otherwise. In essence there is a requirement to provide a paid 10-minute rest break, roughly every 4 hours of work and an unpaid meal break within the first 6 hours. Rest breaks can be timed to happen within these periods but if not specified then they are to be taken at the midpoint of the period i.e.
Between 2 hours and 4 hours – 10 minute break
Between 4 hours and 6 hours – 30 minute meal break
Between 6 hours and 8 hours – 10 minute break
Breaks continue after 8 hours work time as needed, following a similar pattern.
The Bill has to go through several stages before we will know the final requirements of the amendment. We will keep you informed and our Toolbox tools will be updated once the changes are confirmed.
eSigning employment Agreements
While traditionally people have put pen to paper for signing employment agreements and other business documents, a growth in technology has allowed for this to become modernised and the use of electronic signatures is becoming more popular with businesses as they move into a paperless environment.
An electronic signature is defined as "a method used to identify a person and indicate that person’s approval of that information" and while electronic transactions have been around for some time, the Electronic Transaction Act 2002 has now been consolidated into the Contract and Commercial Law Act 2017 (CCLA). Part 4 of the CCLA has modernised the language used in the Electronic Transaction Act 2002 and outlines the legal requirements that must be met when using electronic transactions and electronic signatures.
In order for the use of an electronic signature to be legally binding it must satisfy the requirements of the CCLA, these requirements are:
- The other party consents to receiving an electronic signature;
- The electronic signature adequately identifies the signatory;
- It indicates the signatory’s approval of the agreement terms and their intention to be legally bound; and
- Be appropriate and reliable given the circumstances in which the signature is required.
- The means of creating the electronic signature is linked to the signatory and no other person;
- The means of creating the electronic signature was under the control of the signatory and no other person;
- The purpose of the signature is to provide assurance to the integrity of the information to which it relates; and
- Any alteration made to the electronic signature (or information) made after the time of signing is detectable.
Who owns your emails?
A recent case tested the ability for a sacked employee to request all their email correspondence from their former employer.
The issue was brought before the Privacy Commissioner as the employee claimed the emails were personal to him and therefore he had a right to them.
The man who was a university academic was dismissed for serious misconduct and lost access to his email account on the day of his termination. Over a 12 month period of his employment which he requested it was estimated his mailbox contained around 12,000 emails, to which he argued he was entitled access to.
The university offered to provide certain specific emails upon request but not for the entire period as they deemed it an unreasonable request which would require them to review and assess every email to filter any commercially sensitive items.
The Privacy Commissioner agreement and declined the employee's claim.
If you get a request from a staff member (current or ex) you are required to consider it under 'Good Faith' obligations. However you also have to protect your business in terms of company intellectual property, commercially sensitive or confidential information and the privacy of other party information. In this instance it was denied since it was considered unreasonable and the ex employee was unwilling to negotiate.
Emails generated by employees during the course of their employment using the employer's system are property of the Employer. However, this doesn't mean the employee doesn't have access rights to them.
Employers Toolbox Updates
The Employers Toolbox has a number of new and updated features rolled out early this year. Read on for a run down of the changes.
New tab - "RECRUIT"A new section; Recruit, has replaced the Staff tab along the top toolbar of the Employers Toolbox. The Staff tab is now accessible from the Dashboard.
Recruitment is a new feature which contains a collection of all the relevant documents, eBooks and letters you will need when hiring staff or engaging contractors or volunteers.
Our publication 'How to Employ Staff' has also been substantially reviewed and revised last month.
Staff ChecksYou now have the ability to create checklists for your staff members. The concept is to assist in your management and administration of training, equipment issued or anything else you might wish to keep a list of.
You can create as many lists as you like from your settings screen.
A tick-box for each list you create will appear on each staff members screen and get ticked and un-ticked on that screen. If you delete a list from your Staff Settings screen you will also remove the respective tick-boxes from the staff screen.
eSign AgreementsAny document created from the Agreements section of the Employers Toolbox can now be electronically signed within the Toolbox system. This includes; Employment Agreements, Independent Contractor Agreements, Staff handbooks and any of your custom templates.
All the usual recommended processes of recruitment remain, eSigning simply removes the requirement for a physical printout of the Agreement and manual signatures. The Employers Toolbox has all the processes, security and storage mechanisms to manage this for you.
For an in-depth guide and instructions on the system please see this article.
new government, new employment laws, more costs to employers
22 November 2017
Employers Assistance -
Hello and welcome to our November Newsletter for managers and business owners.
We bring you what we know so far on the new Government, only a couple of items are definite, but one certainty is that it will be costing Employers more.
We have compiled a list of all the Public Holidays over the coming festive period and 2018, advice on using the correct type of Employment Agreement for seasonal staff, and how to transfer a Public Holiday should you wish to.
Thank you for reading, please click on the articles below for more information.
Kind regards,
Chris Bowden BSc
Director
Published 10 Nov 2017
With the coalition deals now signed off and the new Government officially sworn in, it's time to dissect the proposed changes and what they will mean for businesses.
Already announced is the intention to increase the minimum wage to $20 per hour by April 2021, starting with an increase to $16.50 per hour in April 2018.
There have been mixed reactions to this announcement, low paid employees and the Council of Trade Unions have celebrated the move, however many businesses have expressed concern about how this will impact their costs and are concerned that this would need to be passed on to their customers. The other concern for employers is maintaining wage relativity, employees who currently receive more than the minimum wage will expect their wage rate to increase in order to stay above the minimum rate and this is going to increase cost even more which may not be able to be absorbed by the company.
There has been suggestions that the Government will introduce tax cuts to help small businesses deal with this increase, however nothing has been confirmed at this stage. Without assistance to counterbalance the increases, there is a high chance that businesses would need to inflate prices at the disadvantage of the consumer, or face making employees redundant.
The other significant change which has been announced is the increase in paid parental leave. Currently at 18 weeks, the increase is set to be completed in increments, with an increase to 22 weeks by July 2018 and then a further increase to 26 weeks by July 2020.
Prime Minister Jacinda Adern stated that she hoped an increase in time off would make it more likely for an employee to return to work. She also acknowledged that finding someone to replace staff for longer could prove tougher for some businesses. As paid parental leave is provided by IRD there should not be financial burden on an employer with this change being implemented.
There have been other proposed changes put forward throughout the campaign which are yet to be confirmed, however most have support of all three coalition parties.
We are yet to hear exact details with regards to changes to the 90 Day Trial Period, however, what we do know is that there will be a requirement to provide reasons and justifications for the dismissal, and that a referee service will be set up to hear disputes claims with the priority response being reinstatement or a capped award.
Labour has also suggested that the number of labour inspectors will double, an increase up to 110 inspectors.
Another of Labour’s main workplace relations policies is to introduce fair pay agreements. This would be by agreement with businesses within an industry and the unions representing workers of that industry. The idea is to set basic pay standards and employment conditions across the industry. This would not begin until there was sufficient demand by employers and employees within an industry to call for one.
The Green Party are advocating for an increase in sick leave days from 5 to 10 day per year and would like to improve the rights of casual or temporary workers, as well as introducing an equal pay agreement for women in the workplace.
New Zealand First support the increase to minimum wage however they want to take this further by abolishing the starting out rate and removing a secondary tax on employment. They are also promoting a change to redundancy provisions and want to set a minimum redundancy notice provision at double what is currently in place, up to 13 weeks. They have also suggested introducing a paid paternal leave of 2 weeks which would increase over time to 4 weeks. They are the only party to have suggested changes with regards to health and safety, they are requesting a review of the Health and Safety at Work Act and to remove the bureaucratic process from this.
At this time there is still a lot of uncertainty around which policies will progress and which will fall to the wayside, the only confirmed changes are the increase to minimum wage and paid parental leave.
As new changes are introduced we will update you and advise how they may affect your business.
EMPLOYMENT AGREEMENTS FOR SEASONAL STAFF
Christmas and New Year is a busy business time for some employers. Many have to take on more staff usually on fixed term or casual employment agreements to keep up with customer demand. Employers need to ensure that new employees are employed on the appropriate type of agreement, and that the minimum statutory requirements for that type of agreement are satisfied.
If the employee is to be used consistently during the busy time but will not be required once it is finished, a fixed term employment agreement is likely to be the most appropriate contract. In this case, the employment agreement itself must state: when the employment agreement will end (i.e. on a particular date or at the end of a particular project or season); the reason why the employment will end then; and the way in which the employment will end.
However, if the employee is only to be engaged on an "as and when required" basis and there is no expectation of work from one engagement to the next, then a casual employment agreement is likely to be the most appropriate contract.
Whether you're engaging contractors, casuals or permanent staff over the coming period ensure your business uses the best Employment Agreements available and save 20% on our entire range of Agreements: www.employers.co.nz/employer-products.aspx?cat=agreements
PUBLIC HOLIDAYS 2018
New Zealand Public Holidays Actual Date Observed Date (2017)
Christmas Day 25 December Monday 25 December
Boxing Day 26 DecemberTuesday 26 December
(2018)
New Year's Day 1 JanuaryMonday 1 January
Day After New Year's Day 2 JanuaryTuesday 2 January
Waitangi Day 6 FebruaryTuesday 6 February
Good Friday Varies Friday 30 March
Easter Monday Varies Monday 2 April
ANZAC Day 25 April Wednesday 25 April
Queen's Birthday 1st Monday in June Monday 4 June
Labour Day 4th Monday in October Monday 22 October
Christmas Day 25 December Tuesday 25 December
Boxing Day 26 December Wednesday 26 December
New Zealand Provincial Holidays
Actual Date
(2018)
Auckland and Northland 29 January Monday 29 January
Taranaki 31 March Monday 12 March
Hawke's Bay 1 November Friday 19 October
Wellington 22 January Monday 22 January
Marlborough 1 November Monday 29 October
Nelson 1 February Monday 29 January
Canterbury 16 December Friday 16 November
South Canterbury 16 December Monday 24 September
Westland 1 December Monday 3 December
Otago 23 March Monday 26 March
Southland 17 January Tuesday 3 April
Chatham Islands 30 November Monday 3 December
* Source DOL
Note:
Christmas Day, Boxing Day, New Year's Day & 2 January Holiday
These public holidays are observed on the actual day when they fall on a weekday.
When they fall on a Saturday or Sunday:
* if the employee would normally have worked on the Saturday /Sunday, the public holiday is observed on the Saturday/Sunday;
* if the employee would not normally have worked on the Saturday/Sunday, the public holiday is observed on the following Monday/Tuesday.
Waitangi and ANZAC Days
The public holidays for ANZAC Day and Waitangi Day are "Mondayised" if they fall on a Saturday or Sunday.
Provincial Anniversary Days
These are generally observed on the Monday nearest to the actual day.
Provinces
These relate to the former Provinces of 19th Century New Zealand and are not related to or determined by present-day Districts or Regions.
Taranaki Anniversary Day
Moves to 2nd Monday in March to avoid Easter.
Hawkes Bay Anniversary Day
Moved to Friday before Labour Day.
Marlborough Anniversary Day
Observed on the first Monday after Labour Day.
Canterbury Anniversary
Northern & Central Canterbury areas observe Christchurch Show Day. The definition for the Canterbury Anniversary Day celebration as decided by Christchurch City is the second Friday after the first Tuesday in November each year. South Canterbury observes Dominion Day, the 4th Monday in September.
Westland
Varies throughout Westland, but Greymouth observes the official day.
Otago Anniversary
As there is no easily determined single day of local observance for Otago or Southland then the parties should rely on either their employment agreement or their own custom and practice. Where there is no clear custom and practice then the parties should seek to find an agreement on how they will observe Anniversary day.
If the parties are unhappy with how this matter has been handled in their workplace they can seek assistance from a Labour Inspector, or if they require help to settle agreement in their workplace they can seek assistance from the Ministry of Business Innovation and Employment mediation service.
Southland Anniversary
Southland Anniversary Day is celebrated on Easter Tuesday.
While these lists have been compiled from the information provided, in good faith, we don't give guarantees of accuracy.
For more information on this and Holidays in general see the "Annual Holidays and Leave" ebook. This provides in depth information on Annual Holidays (leave and holiday pay), Public Holidays, Sick and Bereavement Leave, explanations of Relevant Daily Pay, Average Daily Pay, Gross Earnings, Ordinary Weekly Pay etc.
It is available for purchasing and downloading from annual-holidays-and-leave-product.aspx. It is free for Employer Support Package subscribers who can download it from the Dashboard Library section of the Employers Toolbox(www.EmployersToolbox.co.nz)
TRANSFERRING PUBLIC HOLIDAYS
Sometimes there can be circumstances which mean that observing a Public Holiday on the day it falls is not convenient for the business or for the employee.
An agreement can be made to transfer the observance of the Public Holiday to another day.
The Public Holiday being transferred must be an otherwise working day for the employee and the requirements of the Holidays Act 2003 must be met.
The requirements are that the day transferred to must be an identified calendar day or 24 hour period and it must be an otherwise working day for the employee and not another public holiday.
The employee is entitled to a paid day off on the day the Public Holiday was transferred to. If they work on this day then it is to be treated as a Public Holiday and the entitlement of time and a half and an alternative holiday must be provided. If an employee falls sick on this day or taken annual leave then it is still to be paid as a Public Holiday, their sick or annual leave should not be deducted.
A transfer can also be made in part for when an employee works a shift that spans over two days. In these circumstances the ‘day’ which the Public Holiday is being transferred to must be a period of 24 hours which starts or ends on the actual Public Holiday and covers the whole of the employees shift.
The purpose of a transfer cannot be to reduce the employee’s minimum entitlements such as being paid time and a half or receiving an alternative holiday. It also cannot be used to reduce the amount of Public Holidays the employee gets annually.
Employers Assistance -
Hello and welcome to our November Newsletter for managers and business owners.
We bring you what we know so far on the new Government, only a couple of items are definite, but one certainty is that it will be costing Employers more.
We have compiled a list of all the Public Holidays over the coming festive period and 2018, advice on using the correct type of Employment Agreement for seasonal staff, and how to transfer a Public Holiday should you wish to.
Thank you for reading, please click on the articles below for more information.
Kind regards,
Chris Bowden BSc
Director
Published 10 Nov 2017
With the coalition deals now signed off and the new Government officially sworn in, it's time to dissect the proposed changes and what they will mean for businesses.
Already announced is the intention to increase the minimum wage to $20 per hour by April 2021, starting with an increase to $16.50 per hour in April 2018.
There have been mixed reactions to this announcement, low paid employees and the Council of Trade Unions have celebrated the move, however many businesses have expressed concern about how this will impact their costs and are concerned that this would need to be passed on to their customers. The other concern for employers is maintaining wage relativity, employees who currently receive more than the minimum wage will expect their wage rate to increase in order to stay above the minimum rate and this is going to increase cost even more which may not be able to be absorbed by the company.
There has been suggestions that the Government will introduce tax cuts to help small businesses deal with this increase, however nothing has been confirmed at this stage. Without assistance to counterbalance the increases, there is a high chance that businesses would need to inflate prices at the disadvantage of the consumer, or face making employees redundant.
The other significant change which has been announced is the increase in paid parental leave. Currently at 18 weeks, the increase is set to be completed in increments, with an increase to 22 weeks by July 2018 and then a further increase to 26 weeks by July 2020.
Prime Minister Jacinda Adern stated that she hoped an increase in time off would make it more likely for an employee to return to work. She also acknowledged that finding someone to replace staff for longer could prove tougher for some businesses. As paid parental leave is provided by IRD there should not be financial burden on an employer with this change being implemented.
There have been other proposed changes put forward throughout the campaign which are yet to be confirmed, however most have support of all three coalition parties.
We are yet to hear exact details with regards to changes to the 90 Day Trial Period, however, what we do know is that there will be a requirement to provide reasons and justifications for the dismissal, and that a referee service will be set up to hear disputes claims with the priority response being reinstatement or a capped award.
Labour has also suggested that the number of labour inspectors will double, an increase up to 110 inspectors.
Another of Labour’s main workplace relations policies is to introduce fair pay agreements. This would be by agreement with businesses within an industry and the unions representing workers of that industry. The idea is to set basic pay standards and employment conditions across the industry. This would not begin until there was sufficient demand by employers and employees within an industry to call for one.
The Green Party are advocating for an increase in sick leave days from 5 to 10 day per year and would like to improve the rights of casual or temporary workers, as well as introducing an equal pay agreement for women in the workplace.
New Zealand First support the increase to minimum wage however they want to take this further by abolishing the starting out rate and removing a secondary tax on employment. They are also promoting a change to redundancy provisions and want to set a minimum redundancy notice provision at double what is currently in place, up to 13 weeks. They have also suggested introducing a paid paternal leave of 2 weeks which would increase over time to 4 weeks. They are the only party to have suggested changes with regards to health and safety, they are requesting a review of the Health and Safety at Work Act and to remove the bureaucratic process from this.
At this time there is still a lot of uncertainty around which policies will progress and which will fall to the wayside, the only confirmed changes are the increase to minimum wage and paid parental leave.
As new changes are introduced we will update you and advise how they may affect your business.
EMPLOYMENT AGREEMENTS FOR SEASONAL STAFF
Christmas and New Year is a busy business time for some employers. Many have to take on more staff usually on fixed term or casual employment agreements to keep up with customer demand. Employers need to ensure that new employees are employed on the appropriate type of agreement, and that the minimum statutory requirements for that type of agreement are satisfied.
If the employee is to be used consistently during the busy time but will not be required once it is finished, a fixed term employment agreement is likely to be the most appropriate contract. In this case, the employment agreement itself must state: when the employment agreement will end (i.e. on a particular date or at the end of a particular project or season); the reason why the employment will end then; and the way in which the employment will end.
However, if the employee is only to be engaged on an "as and when required" basis and there is no expectation of work from one engagement to the next, then a casual employment agreement is likely to be the most appropriate contract.
Whether you're engaging contractors, casuals or permanent staff over the coming period ensure your business uses the best Employment Agreements available and save 20% on our entire range of Agreements: www.employers.co.nz/employer-products.aspx?cat=agreements
PUBLIC HOLIDAYS 2018
New Zealand Public Holidays Actual Date Observed Date (2017)
Christmas Day 25 December Monday 25 December
Boxing Day 26 DecemberTuesday 26 December
(2018)
New Year's Day 1 JanuaryMonday 1 January
Day After New Year's Day 2 JanuaryTuesday 2 January
Waitangi Day 6 FebruaryTuesday 6 February
Good Friday Varies Friday 30 March
Easter Monday Varies Monday 2 April
ANZAC Day 25 April Wednesday 25 April
Queen's Birthday 1st Monday in June Monday 4 June
Labour Day 4th Monday in October Monday 22 October
Christmas Day 25 December Tuesday 25 December
Boxing Day 26 December Wednesday 26 December
New Zealand Provincial Holidays
Actual Date
(2018)
Auckland and Northland 29 January Monday 29 January
Taranaki 31 March Monday 12 March
Hawke's Bay 1 November Friday 19 October
Wellington 22 January Monday 22 January
Marlborough 1 November Monday 29 October
Nelson 1 February Monday 29 January
Canterbury 16 December Friday 16 November
South Canterbury 16 December Monday 24 September
Westland 1 December Monday 3 December
Otago 23 March Monday 26 March
Southland 17 January Tuesday 3 April
Chatham Islands 30 November Monday 3 December
* Source DOL
Note:
Christmas Day, Boxing Day, New Year's Day & 2 January Holiday
These public holidays are observed on the actual day when they fall on a weekday.
When they fall on a Saturday or Sunday:
* if the employee would normally have worked on the Saturday /Sunday, the public holiday is observed on the Saturday/Sunday;
* if the employee would not normally have worked on the Saturday/Sunday, the public holiday is observed on the following Monday/Tuesday.
Waitangi and ANZAC Days
The public holidays for ANZAC Day and Waitangi Day are "Mondayised" if they fall on a Saturday or Sunday.
Provincial Anniversary Days
These are generally observed on the Monday nearest to the actual day.
Provinces
These relate to the former Provinces of 19th Century New Zealand and are not related to or determined by present-day Districts or Regions.
Taranaki Anniversary Day
Moves to 2nd Monday in March to avoid Easter.
Hawkes Bay Anniversary Day
Moved to Friday before Labour Day.
Marlborough Anniversary Day
Observed on the first Monday after Labour Day.
Canterbury Anniversary
Northern & Central Canterbury areas observe Christchurch Show Day. The definition for the Canterbury Anniversary Day celebration as decided by Christchurch City is the second Friday after the first Tuesday in November each year. South Canterbury observes Dominion Day, the 4th Monday in September.
Westland
Varies throughout Westland, but Greymouth observes the official day.
Otago Anniversary
As there is no easily determined single day of local observance for Otago or Southland then the parties should rely on either their employment agreement or their own custom and practice. Where there is no clear custom and practice then the parties should seek to find an agreement on how they will observe Anniversary day.
If the parties are unhappy with how this matter has been handled in their workplace they can seek assistance from a Labour Inspector, or if they require help to settle agreement in their workplace they can seek assistance from the Ministry of Business Innovation and Employment mediation service.
Southland Anniversary
Southland Anniversary Day is celebrated on Easter Tuesday.
While these lists have been compiled from the information provided, in good faith, we don't give guarantees of accuracy.
For more information on this and Holidays in general see the "Annual Holidays and Leave" ebook. This provides in depth information on Annual Holidays (leave and holiday pay), Public Holidays, Sick and Bereavement Leave, explanations of Relevant Daily Pay, Average Daily Pay, Gross Earnings, Ordinary Weekly Pay etc.
It is available for purchasing and downloading from annual-holidays-and-leave-product.aspx. It is free for Employer Support Package subscribers who can download it from the Dashboard Library section of the Employers Toolbox(www.EmployersToolbox.co.nz)
TRANSFERRING PUBLIC HOLIDAYS
Sometimes there can be circumstances which mean that observing a Public Holiday on the day it falls is not convenient for the business or for the employee.
An agreement can be made to transfer the observance of the Public Holiday to another day.
The Public Holiday being transferred must be an otherwise working day for the employee and the requirements of the Holidays Act 2003 must be met.
The requirements are that the day transferred to must be an identified calendar day or 24 hour period and it must be an otherwise working day for the employee and not another public holiday.
The employee is entitled to a paid day off on the day the Public Holiday was transferred to. If they work on this day then it is to be treated as a Public Holiday and the entitlement of time and a half and an alternative holiday must be provided. If an employee falls sick on this day or taken annual leave then it is still to be paid as a Public Holiday, their sick or annual leave should not be deducted.
A transfer can also be made in part for when an employee works a shift that spans over two days. In these circumstances the ‘day’ which the Public Holiday is being transferred to must be a period of 24 hours which starts or ends on the actual Public Holiday and covers the whole of the employees shift.
The purpose of a transfer cannot be to reduce the employee’s minimum entitlements such as being paid time and a half or receiving an alternative holiday. It also cannot be used to reduce the amount of Public Holidays the employee gets annually.
employment law: update 18.10.17
This month we highlight two articles from Employers Assistance newsletter:
The Employment Court has rejected another termination under the 90 Day Trial Period, and
Time and Wage Record Keeping.
The Employment Court has rejected another termination under the 90 Day Trial Period, and
Time and Wage Record Keeping.
Employment Court Overrides 90 Day Trial Period
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Published 15 Oct 2017
A recent Employment Court determination has reinforced that strict compliance is required with both the legislative and contractual provisions of a Trial Period, including the length and method of notice periods.
The employer, Farmer Motor Group Ltd (FMG), verbally dismissed the employee under the trial provision effective immediately and then proceeded to pay the notice and holiday pay entitlements.
The employee later raised a personal grievance in regards to the dismissal claiming that he was not given 'notice' as required by the Employment Relations Act 2000 and his Employment Agreement.
It was not disputed that there was a valid 90 Day Trial clause under the Act, however the question to be decided was whether the employer had met the notice requirements outlined in the employment agreement, and if not, whether the Trial Period was invalid and the employee was able to bring a personal grievance in regards to their dismissal.
Both the Employment Relations Authority (ERA) and the Employment Court reviewed the termination clause of the employee's agreement, which stated "... agreement may be terminated by either party on not less than four weeks' notice in writing to the other party." The ERA and the following Court appeal determined that because the clause expressly stated that the notice must be in writing, FMG could not rely on the Trial Period for protection, and therefore an unjustified dismissal claim is possible.
The employer made a payment in lieu of notice, however this was held to not be a substitute for having to provide the employee with the required written notice of the dismissal. The effect of the payment is simply to remove the requirement for the employee to continue working during the notice period.
The Court identified that the issue which it was required to determine was whether the employee was prevented from pursuing a personal grievance for unjustified dismissal due to the trial period provision in his individual employment agreement or whether because of the failure to give written notice, the dismissal in reliance upon the trial period provision was not valid and consequently the employee is able to pursue a personal grievance claim.
So once again the Courts confirm when it comes to the 90 Day Trial Period, it is clear that there has to be strict compliance to contractual provisions.
We strongly suggest before taking any action towards termination under the 90 DTP, use our free Tools online to check the points you need to consider: Click here to go to the tools.
If you are unsure about the content or accuracy of your Employment Agreement clauses with respect to the 90 DTP, use ours for the best protection of your business.
Both the Employments Contract Creator software and the Employers Toolbox online have the latest templates for the most up to date 90 Day Trial Period clauses.
time and wage record keeping
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Published 15 Oct 2017
The importance of keeping proper time and wage records should never be underestimated. Section 130 of the Employment Relations Act 2000 details specific information that has to be recorded for each employee. In addition to the employee’s name and address there are requirements to keep details of the hours worked each day, the wages paid and the method of calculation. There is also a requirement for record keeping in the Holidays Act 2003.
Some information can be recorded in the employment agreement or in a work roster. If you use our software or online Toolbox, the schedule wizard in the employment agreement builder enables this mandatory information to be recorded.
No matter how the information is held it has to be accessible to the employee and a Labour Inspector, with historic records being available for at least seven years.
A number of businesses found out recently that the cost of getting record keeping wrong, or not keeping records, has serious financial consequences. In addition making good any underpayment that may have occurred, these businesses were also fined for failing to keep records – including time records, wages books and employment agreements. The fines imposed for the breach ranged between $4,000 and $50,000, plus tens of thousands in wage arrears. In the absence of records held by the employer any arrears of wages claim will be based on information supplied by the employee.
Keeping good records is not only sound commercial sense, but also a legal requirement and is strongly enforced by MBIE. For advice please call us.
Published 15 Oct 2017
The importance of keeping proper time and wage records should never be underestimated. Section 130 of the Employment Relations Act 2000 details specific information that has to be recorded for each employee. In addition to the employee’s name and address there are requirements to keep details of the hours worked each day, the wages paid and the method of calculation. There is also a requirement for record keeping in the Holidays Act 2003.
Some information can be recorded in the employment agreement or in a work roster. If you use our software or online Toolbox, the schedule wizard in the employment agreement builder enables this mandatory information to be recorded.
No matter how the information is held it has to be accessible to the employee and a Labour Inspector, with historic records being available for at least seven years.
A number of businesses found out recently that the cost of getting record keeping wrong, or not keeping records, has serious financial consequences. In addition making good any underpayment that may have occurred, these businesses were also fined for failing to keep records – including time records, wages books and employment agreements. The fines imposed for the breach ranged between $4,000 and $50,000, plus tens of thousands in wage arrears. In the absence of records held by the employer any arrears of wages claim will be based on information supplied by the employee.
Keeping good records is not only sound commercial sense, but also a legal requirement and is strongly enforced by MBIE. For advice please call us.
ministry of business innovation and employment
Paid sick leave: get it right
Paid sick leave: Get it right
If an employee has been with you for more than six months, in most cases you must give them paid sick leave.
Make sure you know all the ins and outs, including how to deal with casual and part-time workers, when to roll over untaken sick days, and when it’s OK to ask for a GP’s certificate.
Time off workEmployees can take sick leave if they are sick or injured, or to look after their partner or another dependant person who is sick or injured. This could be a husband or wife, partner, child, or anyone else who relies on them, eg an elderly relative.
Your employee must tell you as soon as possible if they want to take sick leave. Let them know how you’d like them to tell you, eg a phone call. Put it in your workplace policies, too.
The legal minimum is five paid sick days a year. You must give your employees sick leave once they’ve worked continuously for you for six months, or if they meet the average hours criteria set out in Who can take sick leaveparagraph below. Those eligible for sick leave can build up at least 20 days of untaken sick leave — this is known as rolling over sick leave.
Employers are welcome to offer workers more than the legal minimum. Many do, giving more days off and/or letting employees take sick leave in advance. To continue reading, click on the button below....
Sick leave (external link) – Employment New Zealand
If an employee has been with you for more than six months, in most cases you must give them paid sick leave.
Make sure you know all the ins and outs, including how to deal with casual and part-time workers, when to roll over untaken sick days, and when it’s OK to ask for a GP’s certificate.
Time off workEmployees can take sick leave if they are sick or injured, or to look after their partner or another dependant person who is sick or injured. This could be a husband or wife, partner, child, or anyone else who relies on them, eg an elderly relative.
Your employee must tell you as soon as possible if they want to take sick leave. Let them know how you’d like them to tell you, eg a phone call. Put it in your workplace policies, too.
The legal minimum is five paid sick days a year. You must give your employees sick leave once they’ve worked continuously for you for six months, or if they meet the average hours criteria set out in Who can take sick leaveparagraph below. Those eligible for sick leave can build up at least 20 days of untaken sick leave — this is known as rolling over sick leave.
Employers are welcome to offer workers more than the legal minimum. Many do, giving more days off and/or letting employees take sick leave in advance. To continue reading, click on the button below....
Sick leave (external link) – Employment New Zealand
Employers Assistance 0800 158000
September 2017
It's started: WorkSafe NZ have completed their first prosecution under the new Health & Safety Act.
Not quite getting the $900k they wanted, but $137,500 sends a strong message.
Fonterra suspending staff from duties for being overweight. Is that ok?
2 years Jail for ignoring Employment and Taxation Laws for a Hamilton man and our new Asbestos Register online updates.
Click the articles below for this and more.
Warm regards.
Chris Bowden BSc
Director - Employers Assistance.
Daylight Saving Starts
Daylight Saving will begin again this month on Sunday 24th September. At 2.00am clocks are put forward one hour to 3.00am.
Employees who are working during that time will be working an hour less, but should still be paid for that extra hour as if it was worked.
Daylight Saving lasts through to 1st April 2018 when clocks go back 1 hour to NZ standard time.
First OSH Prosecution Under New Act - $137,500
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Published 04 Sep 2017
From a workplace accident in April 2016, the first prosecution under the new Health & Safety at Work 2015 Act (HSWA) went through Palmerston North District Court last week, costing the firm $137,500.
Budget Plastics (NZ) Ltd have to pay $37,500 in emotional harm reparations and a $100,000 fine after an employee had a portion of their hand amputated while operating a plastic extrusion machine.
The Company who had in the weeks prior to the accident engaged a consultant to do a Health & Safety audit but failed to address the issues found, including the lack of guarding for this particular machine.
Following a WorkSafe investigation several points of failure were outlined:
Under the previous Health and Safety in Employment Act (1992) fines from machine guarding cases usually ranged between $30,000 to $40,000 on average. In this case WorkSafe suggested that a starting point of $900,000 was appropriate.
The Judge however, recommended a fine start point of between $400,000 and $600,000 given the level of culpability from the Company. This was then reduced to between $210,000 and $315,000 based on mitigating factors such as the Company's engagement with a Health & Safety consultant and guilty plea. The fine was then set in the range of $275,000 but finally reduced to $100,000 based on the company’s ability to pay, backed by the Company's accounting evidence.
2 Years Jail for Hamilton Employer
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Published 04 Sep 2017
Paying staff in cash, goods or trade, no records or various tax returns has landed a Hamilton boss with a 2 year jail sentence this week.
Extensive offending over a decade including no PAYE or GST returns and 'wilfully ignoring obligations' has seen Hamilton based KEB Transport's boss bankrupt and now facing a custodial sentence.
Just under an estimated half-million dollar tax fraud makes this an extreme example, far removed from the more commonplace record-keeping failures.
Upon sentencing the Judge said this wasn't a crime against a faceless Government Department, rather it was stealing from everyday Kiwis who also had to pay tax. Starting at a 3 and a half years jail term various mitigating circumstances, guilty pleas, previous good character and remorse, saw it brought down to 24 months.
Staff Stood Down for Being Overweight
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Published 04 Sep 2017
Fonterra has been in the spotlight this week after summarily standing down some of their truck drivers, following advice from the manufacturers of their milk trucks that some of Fonterra's drivers may be exceeding the safety weight limit for the truck seats.
It is understood 2 of a potential 50 of their staff weighing more than 140kg have been given alternative duties subsequent to warnings regarding weight limits on seats and safety restraints for some models of the trucks they use.
Fonterra's position was that safety came first. There is a legal and moral responsibility to protect staff from known risks, and they are simply acting on new advice from the truck manufacturers. There is no talk of redundancy at this stage, affected staff are being offered 'health and wellness' programmes in an attempt to get them back to a safe weight, meanwhile alternative duties and upskilling in those areas are available.
Unions were quick to point out that staff had not gained weight since being employed for the role and this being blatent discrimination and humiliating.
In New Zealand obesity is not classed as a disability, and therefore does not qualify as discrimination under the Human Rights Act. An employee must be fit to do the role for which are are employed, and 'fitness for work' is not an uncommon employment issue.
Asbestos Register
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Published 04 Sep 2017
As part of our commitment to continual improvement for our products of our subscribers, the Employers Toolbox Health & Safety now has an Asbestos Register to comply with the new Health and Safety at Work (Asbestos) Regulations 2016.
A dedicated register is now available from the Health & Safety homepage. This allows the user to record the appropriate and required information and form a management plan to manage the risk.
Integrated with the alert system to inform you when reviews are required and also with the Visitor Portal and Contractor Inductions packs to alert third parties when there is an asbestos risk in their respective areas.
This feature is already live in the Employers Toolbox. All members who subscribe to online Health & Safety will notice a new menu item in the left hand list of the Health & Safety homepage.
It's started: WorkSafe NZ have completed their first prosecution under the new Health & Safety Act.
Not quite getting the $900k they wanted, but $137,500 sends a strong message.
Fonterra suspending staff from duties for being overweight. Is that ok?
2 years Jail for ignoring Employment and Taxation Laws for a Hamilton man and our new Asbestos Register online updates.
Click the articles below for this and more.
Warm regards.
Chris Bowden BSc
Director - Employers Assistance.
Daylight Saving Starts
Daylight Saving will begin again this month on Sunday 24th September. At 2.00am clocks are put forward one hour to 3.00am.
Employees who are working during that time will be working an hour less, but should still be paid for that extra hour as if it was worked.
Daylight Saving lasts through to 1st April 2018 when clocks go back 1 hour to NZ standard time.
First OSH Prosecution Under New Act - $137,500
Email Print
Published 04 Sep 2017
From a workplace accident in April 2016, the first prosecution under the new Health & Safety at Work 2015 Act (HSWA) went through Palmerston North District Court last week, costing the firm $137,500.
Budget Plastics (NZ) Ltd have to pay $37,500 in emotional harm reparations and a $100,000 fine after an employee had a portion of their hand amputated while operating a plastic extrusion machine.
The Company who had in the weeks prior to the accident engaged a consultant to do a Health & Safety audit but failed to address the issues found, including the lack of guarding for this particular machine.
Following a WorkSafe investigation several points of failure were outlined:
- inadequate safe operating procedure for use of the machine
- inadequate policies for training workers in the safe use of the machine
- insufficient machine guarding
- lack of appropriately fitted and located emergency stop controls
- inadequate systems in place for identifying hazards in the workplace
Under the previous Health and Safety in Employment Act (1992) fines from machine guarding cases usually ranged between $30,000 to $40,000 on average. In this case WorkSafe suggested that a starting point of $900,000 was appropriate.
The Judge however, recommended a fine start point of between $400,000 and $600,000 given the level of culpability from the Company. This was then reduced to between $210,000 and $315,000 based on mitigating factors such as the Company's engagement with a Health & Safety consultant and guilty plea. The fine was then set in the range of $275,000 but finally reduced to $100,000 based on the company’s ability to pay, backed by the Company's accounting evidence.
2 Years Jail for Hamilton Employer
Email Print
Published 04 Sep 2017
Paying staff in cash, goods or trade, no records or various tax returns has landed a Hamilton boss with a 2 year jail sentence this week.
Extensive offending over a decade including no PAYE or GST returns and 'wilfully ignoring obligations' has seen Hamilton based KEB Transport's boss bankrupt and now facing a custodial sentence.
Just under an estimated half-million dollar tax fraud makes this an extreme example, far removed from the more commonplace record-keeping failures.
Upon sentencing the Judge said this wasn't a crime against a faceless Government Department, rather it was stealing from everyday Kiwis who also had to pay tax. Starting at a 3 and a half years jail term various mitigating circumstances, guilty pleas, previous good character and remorse, saw it brought down to 24 months.
Staff Stood Down for Being Overweight
Email Print
Published 04 Sep 2017
Fonterra has been in the spotlight this week after summarily standing down some of their truck drivers, following advice from the manufacturers of their milk trucks that some of Fonterra's drivers may be exceeding the safety weight limit for the truck seats.
It is understood 2 of a potential 50 of their staff weighing more than 140kg have been given alternative duties subsequent to warnings regarding weight limits on seats and safety restraints for some models of the trucks they use.
Fonterra's position was that safety came first. There is a legal and moral responsibility to protect staff from known risks, and they are simply acting on new advice from the truck manufacturers. There is no talk of redundancy at this stage, affected staff are being offered 'health and wellness' programmes in an attempt to get them back to a safe weight, meanwhile alternative duties and upskilling in those areas are available.
Unions were quick to point out that staff had not gained weight since being employed for the role and this being blatent discrimination and humiliating.
In New Zealand obesity is not classed as a disability, and therefore does not qualify as discrimination under the Human Rights Act. An employee must be fit to do the role for which are are employed, and 'fitness for work' is not an uncommon employment issue.
Asbestos Register
Email Print
Published 04 Sep 2017
As part of our commitment to continual improvement for our products of our subscribers, the Employers Toolbox Health & Safety now has an Asbestos Register to comply with the new Health and Safety at Work (Asbestos) Regulations 2016.
A dedicated register is now available from the Health & Safety homepage. This allows the user to record the appropriate and required information and form a management plan to manage the risk.
Integrated with the alert system to inform you when reviews are required and also with the Visitor Portal and Contractor Inductions packs to alert third parties when there is an asbestos risk in their respective areas.
This feature is already live in the Employers Toolbox. All members who subscribe to online Health & Safety will notice a new menu item in the left hand list of the Health & Safety homepage.
Pre-Employment Trials, tattoos at work? Asbestos in Buildings
8 August 2017
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Pre-Employment Trials
We are often asked whether it is legal to ask job candidates to undergo a pre-employment trial prior to being offered a job in the business. The answer is yes, but it is not without risks.
A hair salon was taken to the Employment Relations Authority (ERA) by an employee following a dismissal under the 90 Day Trial Period and a pre-employment trial.
In this case the applicant for a position in a hair salon was asked if she was willing to undertake work 'as a volunteer'. The candidate, after attending the interview, agreed to work as a volunteer for the day to test her suitability for the role. The arrangement was confirmed by email and the 'test' day took place.
On the day the candidate assisted with cleaning, tea and coffee duties, and shampooing hair. At no stage did the parties discuss being paid for the pre-employment test, nor was it ever requested.
Following that day the applicant was offered the job with a 90 Day Trial Period included, which she accepted.
When things didn't work out in subsequent weeks she was dismissed under the 90 Day Trial Period provision, whereupon she raised a personal grievance against her employer claiming unjustified dismissal and disadvantage, specifically on the basis that the work undertaken that day for the pre-employment test meant that she was an existing or previously employed person and therefore the 90 Day Trial Period was not applicable to her.
The ERA upheld that the trial day was a voluntary pre-employment test, meaning that the candidate was not already an employee of the business when the employment agreement was signed. Hence the trial period was valid and the dismissal was justified. They rejected all other claims of the employee.
So, it is legal and enforceable to have an unpaid pre-employment trial even prior to a 90 Day Trial Period. However, if you do plan to undertake this practice we would strongly recommend the use of a written agreement (Candidateship Agreement) for this.
When engaging a volunteer or intern for any reason an agreement should be signed by both parties to confirm the understanding.
Whether it is an internship for a project, or just half a day as a pre-employment trial, ensure it is documented. While a document alone will not grant exemption from a claim or personal grievance, it does go a long way in proving the intention by both parties.
In summary our advice for performing pre-employment trials is to use an agreement or at least document the arrangement explicitly stating that there will be no payment, and that there is no offer of employment being made. Keep the work trial short in duration. Keep the tasks requested of the candidate relevant but try to minimise any commercial benefit to the business.
For our Candidateship Agreement, Volunteer Deed and a guide please see our Volunteers eBook. This is available as a download for members from the Library on the Dashboard of the Employers Toolbox (www.EmployersToolbox.co.nz) or for purchase by non-members from our website here.
Tattoos at work ok?
It is a person’s right to do whatever they want with their own body. Dying their hair, piercings and tattoos, but what are your rights as the Employer when it comes to their employment relationship with you?...full story
Does your building contain asbestos?
WorkSafe NZ identifies asbestos exposure as the leading cause of death from workplace related disease. In line with their plan to reduce workplace related health risks the new asbestos regulations come into effect April 4th 2018. One of the important requirements under the new Health and Safety at Work (Asbestos) Regulations 2016 mean if you own or occupy a building which contains asbestos you must have a management plan by that date....full story
Acc vehicle levySince July 1 2017, the average motor vehicle levy, which includes the ACC levy portion of the rego and the petrol levy, will fall by 12.5%; from $130.26 to $113.94 a vehicle.
The petrol levy component will also fall from 6.9 cents to 6c a litre, a 13% reduction. Together these levies cover the costs of accidents on public roads involving vehicles.
Electric vehicles
Electric vehicles (EVs) and plug-in hybrid electric vehicles (PHEVs) will now be classed the same as petrol cars from 1 July. This means owners will pay a lower levy based on the vehicle’s risk rating.
Email Print
Pre-Employment Trials
We are often asked whether it is legal to ask job candidates to undergo a pre-employment trial prior to being offered a job in the business. The answer is yes, but it is not without risks.
A hair salon was taken to the Employment Relations Authority (ERA) by an employee following a dismissal under the 90 Day Trial Period and a pre-employment trial.
In this case the applicant for a position in a hair salon was asked if she was willing to undertake work 'as a volunteer'. The candidate, after attending the interview, agreed to work as a volunteer for the day to test her suitability for the role. The arrangement was confirmed by email and the 'test' day took place.
On the day the candidate assisted with cleaning, tea and coffee duties, and shampooing hair. At no stage did the parties discuss being paid for the pre-employment test, nor was it ever requested.
Following that day the applicant was offered the job with a 90 Day Trial Period included, which she accepted.
When things didn't work out in subsequent weeks she was dismissed under the 90 Day Trial Period provision, whereupon she raised a personal grievance against her employer claiming unjustified dismissal and disadvantage, specifically on the basis that the work undertaken that day for the pre-employment test meant that she was an existing or previously employed person and therefore the 90 Day Trial Period was not applicable to her.
The ERA upheld that the trial day was a voluntary pre-employment test, meaning that the candidate was not already an employee of the business when the employment agreement was signed. Hence the trial period was valid and the dismissal was justified. They rejected all other claims of the employee.
So, it is legal and enforceable to have an unpaid pre-employment trial even prior to a 90 Day Trial Period. However, if you do plan to undertake this practice we would strongly recommend the use of a written agreement (Candidateship Agreement) for this.
When engaging a volunteer or intern for any reason an agreement should be signed by both parties to confirm the understanding.
Whether it is an internship for a project, or just half a day as a pre-employment trial, ensure it is documented. While a document alone will not grant exemption from a claim or personal grievance, it does go a long way in proving the intention by both parties.
In summary our advice for performing pre-employment trials is to use an agreement or at least document the arrangement explicitly stating that there will be no payment, and that there is no offer of employment being made. Keep the work trial short in duration. Keep the tasks requested of the candidate relevant but try to minimise any commercial benefit to the business.
For our Candidateship Agreement, Volunteer Deed and a guide please see our Volunteers eBook. This is available as a download for members from the Library on the Dashboard of the Employers Toolbox (www.EmployersToolbox.co.nz) or for purchase by non-members from our website here.
Tattoos at work ok?
It is a person’s right to do whatever they want with their own body. Dying their hair, piercings and tattoos, but what are your rights as the Employer when it comes to their employment relationship with you?...full story
Does your building contain asbestos?
WorkSafe NZ identifies asbestos exposure as the leading cause of death from workplace related disease. In line with their plan to reduce workplace related health risks the new asbestos regulations come into effect April 4th 2018. One of the important requirements under the new Health and Safety at Work (Asbestos) Regulations 2016 mean if you own or occupy a building which contains asbestos you must have a management plan by that date....full story
Acc vehicle levySince July 1 2017, the average motor vehicle levy, which includes the ACC levy portion of the rego and the petrol levy, will fall by 12.5%; from $130.26 to $113.94 a vehicle.
The petrol levy component will also fall from 6.9 cents to 6c a litre, a 13% reduction. Together these levies cover the costs of accidents on public roads involving vehicles.
Electric vehicles
Electric vehicles (EVs) and plug-in hybrid electric vehicles (PHEVs) will now be classed the same as petrol cars from 1 July. This means owners will pay a lower levy based on the vehicle’s risk rating.
Contractors or employees?
12 July 2017
Welcome to our July update.
The Employment Relations Authority has awarded $65k in penalties against a Hamilton car dealer for incorrectly engaging workers as contractors instead of as employees - Where you stand as the Boss if your staff are called for Jury Service - Hazardous substances regulations are finalised - Cloud storage options for your important HR documents in the Employers Toolbox.
Please see the articles below for more information.
Thanks and regards.
Chris Bowden BSc
Director
Employers Assistance Ltd
Contractor or Employee? $65,000 fine for getting it wrong.Published 12 Jul 2017
The legal distinction of who is an Independent Contractor and who is an Employee has significant financial liabilities attached to it. It is vital from the outset that the business relationship is defined because if there is a lack of clarity and a dispute arises then the business could face serious financial ramifications in regards to tax payments and employment rights.
A recent Employment Relations Authority case penalised two car sales companies with the same company director a total of $65,000 for falsely categorizing staff as Independent Contractors and not affording them their basic employment rights. Having no employment agreements because the owner believed his staff to be contractors wasn't enough to convince the labour inspectorate.
A person is not able to be both a Contractor and an Employee so it is important to know the difference and to get it right.
An Employee is afforded a lot of minimum rights under the Employment Relations Act and other employment legislation; they have the right to things such as minimum wage, paid annual leave, and sick leave. An Employer has greater control over work and an Employee is required to work to the Employer's standards. Obligations in this type of relationship are required to be outlined in the written Employment Agreement and in dispute situation Employees can raise personal grievances.
An Independent Contractor is self-employed and therefore not covered by the same employment rights provided in the Employment Relations Act or other employment legislation. They are not entitled to paid holidays, sick leave or bereavement leave, and are unable to bring a personal grievance when disputes arise. A Contractor is in business on their own account so they have the right to refuse work and are able to determine when they work and to a certain extent how the work is done. Contractors are not entitled to a written Employment Agreement, however we recommend that you do use a written agreement to make clear the business relationship.
If you have entered an agreement with a Contractor then you need to understand your obligations in regards to paying tax. If a Contractor is performing certain activities which have been identified by Inland Revenue then you are required to pay withholding tax from their schedular payments. If they are not performing any of those specified activities then they are responsible for paying their own tax. With Employees you are required to deduct PAYE from their wages or salary. Getting it wrong could cost your business a lot of unforeseen expenses.
It is not always clear cut whether someone is an Employee or a Contractor, and when disputes occur the Employment Relations Authority consider all relevant matters and the parties’ position on the relationship is not always conclusive.
To help clarify and determine whether someone might be an Employee or an Independent Contractor we have a guide on the subject with an extensive checklist to assist you. Along with two variations of Contractor Agreements if you are using or considering using contractors, ensure you are doing it correctly.
The Independent Contractors eBook is available free to download for members in the Library section of the Employers Toolbox. Or publicly available from our website here.
Uploading documents - Employers Toolbox
Document upload and storage in the Employers Toolbox Online is available in three specific places. The idea being to allow users the ability to store relevant documents together. There is no limit on size or number of documents in your cloud account, and you can change permissions for even better control....full story
Jury Service
Jury service is an important way to contribute to the justice system and your local community. If your employee has been summonsed for jury duty it is important you talk with them about how long they might be off work due to a trial, some trials can last a day or two however other trials may last the whole week or longer which could affect your business....full story
Hazardous Chemicals Update
New rules and regulations around Hazardous Substances come into force this December (2017). This may affect approximately 150,000 businesses in New Zealand who use, handle, manufacture or store hazardous substances in their workplaces....full story
Welcome to our July update.
The Employment Relations Authority has awarded $65k in penalties against a Hamilton car dealer for incorrectly engaging workers as contractors instead of as employees - Where you stand as the Boss if your staff are called for Jury Service - Hazardous substances regulations are finalised - Cloud storage options for your important HR documents in the Employers Toolbox.
Please see the articles below for more information.
Thanks and regards.
Chris Bowden BSc
Director
Employers Assistance Ltd
Contractor or Employee? $65,000 fine for getting it wrong.Published 12 Jul 2017
The legal distinction of who is an Independent Contractor and who is an Employee has significant financial liabilities attached to it. It is vital from the outset that the business relationship is defined because if there is a lack of clarity and a dispute arises then the business could face serious financial ramifications in regards to tax payments and employment rights.
A recent Employment Relations Authority case penalised two car sales companies with the same company director a total of $65,000 for falsely categorizing staff as Independent Contractors and not affording them their basic employment rights. Having no employment agreements because the owner believed his staff to be contractors wasn't enough to convince the labour inspectorate.
A person is not able to be both a Contractor and an Employee so it is important to know the difference and to get it right.
An Employee is afforded a lot of minimum rights under the Employment Relations Act and other employment legislation; they have the right to things such as minimum wage, paid annual leave, and sick leave. An Employer has greater control over work and an Employee is required to work to the Employer's standards. Obligations in this type of relationship are required to be outlined in the written Employment Agreement and in dispute situation Employees can raise personal grievances.
An Independent Contractor is self-employed and therefore not covered by the same employment rights provided in the Employment Relations Act or other employment legislation. They are not entitled to paid holidays, sick leave or bereavement leave, and are unable to bring a personal grievance when disputes arise. A Contractor is in business on their own account so they have the right to refuse work and are able to determine when they work and to a certain extent how the work is done. Contractors are not entitled to a written Employment Agreement, however we recommend that you do use a written agreement to make clear the business relationship.
If you have entered an agreement with a Contractor then you need to understand your obligations in regards to paying tax. If a Contractor is performing certain activities which have been identified by Inland Revenue then you are required to pay withholding tax from their schedular payments. If they are not performing any of those specified activities then they are responsible for paying their own tax. With Employees you are required to deduct PAYE from their wages or salary. Getting it wrong could cost your business a lot of unforeseen expenses.
It is not always clear cut whether someone is an Employee or a Contractor, and when disputes occur the Employment Relations Authority consider all relevant matters and the parties’ position on the relationship is not always conclusive.
To help clarify and determine whether someone might be an Employee or an Independent Contractor we have a guide on the subject with an extensive checklist to assist you. Along with two variations of Contractor Agreements if you are using or considering using contractors, ensure you are doing it correctly.
The Independent Contractors eBook is available free to download for members in the Library section of the Employers Toolbox. Or publicly available from our website here.
Uploading documents - Employers Toolbox
Document upload and storage in the Employers Toolbox Online is available in three specific places. The idea being to allow users the ability to store relevant documents together. There is no limit on size or number of documents in your cloud account, and you can change permissions for even better control....full story
Jury Service
Jury service is an important way to contribute to the justice system and your local community. If your employee has been summonsed for jury duty it is important you talk with them about how long they might be off work due to a trial, some trials can last a day or two however other trials may last the whole week or longer which could affect your business....full story
Hazardous Chemicals Update
New rules and regulations around Hazardous Substances come into force this December (2017). This may affect approximately 150,000 businesses in New Zealand who use, handle, manufacture or store hazardous substances in their workplaces....full story
Welcome to the new Employers Assistance newsletter – Employment Law: Update 8 June 2017
To keep you, as an employer, up-to-date withthe latest developments in employment law legislation and to ensure that you, your staff and your business are compliant and protected.
As you maybe aware there have been significant changes in legislation around Employment agreements that may well effect your business and in this Update, we provide a concise overview of the changes and how you it may affect you.
If you would like to know more about Employers Assistance and the services we offer click here www.employers.co.nz
To keep you, as an employer, up-to-date withthe latest developments in employment law legislation and to ensure that you, your staff and your business are compliant and protected.
As you maybe aware there have been significant changes in legislation around Employment agreements that may well effect your business and in this Update, we provide a concise overview of the changes and how you it may affect you.
If you would like to know more about Employers Assistance and the services we offer click here www.employers.co.nz
www.employers.co.nz 0800 158000
Job description builder
A new feature to the Job Descriptions area of the Employers Toolbox is the Job Description Builder.
Aside from the hundreds of samples to choose from, users are now offered a framework by which to construct their own comprehensive position descriptions from scratch.
The software guides the user through all the usual expected content of the Job Description such as title, reports to, purpose etc, but also guides the user to focus on what key results a position is set out to achieve for the business.
It's commonly recognised that purposeful, relevant and accurate Job Descriptions produce far better results for all concerned including the benefit of the business, and provide a tangible basis for performance management in the future.
The interface to add Job Descriptions into Employment Agreement schedules has also been simplified. When the user is in the schedule screen 'Add' offers all saved Job Description and templates rather than a blank schedule first.
This new feature has been rolled out to all Toolbox accounts already. The Dashboard 'Search Jobs' button will take users through to the familiar screen with the addition of the new tab for 'Templates' and the introduction of 'NEW' button to get creating at the top.
For those who don't have an Employers Toolbox account, consider looking at the online demo to see how having a centralised cloud based HR system could benefit and help protect your business. Take the demo
ARE YOU EMPLOYED OR SELF EMPLOYED?
It is important to know if you are employed or self-employed, because the tax and Accident Compensation laws treat the two groups of people differently.
This leaflet (IR336) will help you find out whether you are employed or self-employed. It also explains the tax differences between the two.
The terms “employment” and “self-employment” are not defined in the tax laws, and there is no single test for deciding between them.
You can decide whether you are employed or self-employed by looking at the work you do and the way you do it. The decision can’t be made just because you or your employer call your job “employment” or “self-employment”.
If you have a contract with the person who pays you, you might be described in it as an “independent contractor”, or as “self employed”, or similar. This doesn’t mean you will automatically be self-employed. The working conditions set out in the contract (or agreed verbally) will determine your status, not the way you are described.
Guidelines
When deciding whether you are employed or self employed in most cases the answer will be obvious. For example, if you are working for a company on a factory production line, doing a job set by your boss, you are employed.
You are self-employed if you are in business on your own account, such as running your own dairy.
If you have a number of jobs, you need to apply the guidelines to each one. If you are employed or self-employed in one job, it does not automatically mean the same will apply to your other job(s).
Consider the main conditions of that job that govern the way you work.
For more information, download this IR336 Guide - click button below
This leaflet (IR336) will help you find out whether you are employed or self-employed. It also explains the tax differences between the two.
The terms “employment” and “self-employment” are not defined in the tax laws, and there is no single test for deciding between them.
You can decide whether you are employed or self-employed by looking at the work you do and the way you do it. The decision can’t be made just because you or your employer call your job “employment” or “self-employment”.
If you have a contract with the person who pays you, you might be described in it as an “independent contractor”, or as “self employed”, or similar. This doesn’t mean you will automatically be self-employed. The working conditions set out in the contract (or agreed verbally) will determine your status, not the way you are described.
Guidelines
When deciding whether you are employed or self employed in most cases the answer will be obvious. For example, if you are working for a company on a factory production line, doing a job set by your boss, you are employed.
You are self-employed if you are in business on your own account, such as running your own dairy.
If you have a number of jobs, you need to apply the guidelines to each one. If you are employed or self-employed in one job, it does not automatically mean the same will apply to your other job(s).
Consider the main conditions of that job that govern the way you work.
For more information, download this IR336 Guide - click button below
PAYING CONTRACTORS?
What you need to know if you pay schedular payments for Contractors
Tax rate notification for contractors (IR330C) form From 1 April 2017 if you have contractors receiving schedular payments and they want to change their tax rate or a new contractor starts working for you, you'll need to give them a Tax rate notification for contractors (IR330C) form instead of the Tax code declaration (IR330) form.
The IR330 should only be given to employees.
Variable tax ratesFrom 1 April 2017 contractors subject to the schedular payment rules can choose their own tax rate when they complete the IR330C, subject to minimums.
If you use payroll software, your software should already be able to accept variable tax rates. If you’re unsure, check with your software provider.
Tax rate notification for contractors (IR330C) form From 1 April 2017 if you have contractors receiving schedular payments and they want to change their tax rate or a new contractor starts working for you, you'll need to give them a Tax rate notification for contractors (IR330C) form instead of the Tax code declaration (IR330) form.
The IR330 should only be given to employees.
Variable tax ratesFrom 1 April 2017 contractors subject to the schedular payment rules can choose their own tax rate when they complete the IR330C, subject to minimums.
If you use payroll software, your software should already be able to accept variable tax rates. If you’re unsure, check with your software provider.
CONTRACTOR - WHAT YOU NEED TO KNOW
What you need to know if you receive schedular payments
Tax rate notification for contractors (IR330C) form From 1 April 2017 if you’re receiving schedular payments and you want to change your tax rate or if you start working for someone new, you'll have to complete a Tax rate notification for contractors (IR330C) form instead of the Tax code declaration (IR330) form.
Choosing your own tax rate
If you’re receiving schedular payments and the standard rate for your activity doesn’t best fit your circumstances you'll be able to choose your own rate, subject to minimums, by completing an IR330C and giving it to the person paying you (payer).
Tax rate notification for contractors (IR330C) form From 1 April 2017 if you’re receiving schedular payments and you want to change your tax rate or if you start working for someone new, you'll have to complete a Tax rate notification for contractors (IR330C) form instead of the Tax code declaration (IR330) form.
Choosing your own tax rate
If you’re receiving schedular payments and the standard rate for your activity doesn’t best fit your circumstances you'll be able to choose your own rate, subject to minimums, by completing an IR330C and giving it to the person paying you (payer).
CONTRACTOR'S CERTIFICATE OF EXEMPTION
Certificate of exemption on schedular payments
You can apply for a certificate of exemption (COE) on schedular payments if you meet certain eligibility criteria. This means you won't have tax deducted from your payments.
What's on this page
Eligibility for a certificate of exemption
To be eligible you need to:
** non-residents for tax purposes are able to apply for a COE if being paid by a labour hire business under a labour hire arrangement.
If you're a contractor with a COE, you won't have tax deducted from your payments. A COE doesn't apply to an employee receiving salary or wages with PAYE deducted.
If you're a contractor being paid under a labour hire arrangement by a labour hire business you can apply for a 0% special tax rate certificate instead if:
If you're doing other work (another job) that isn't under a labour hire arrangement you can apply for a COE for those payments.
If you already have a COE
If you already have a valid COE and you receive schedular payments under a labour hire arrangement you can still use your COE for these payments from 1 April 2017 to the earlier of the expiry of your certificate or 31 March 2018. After this date if you want a 0% tax rate, you'll need to apply for a 0% special tax rate certificate.
This only applies to schedular payments you receive on or after 1 April 2017. Before then these payments don't require tax to be deducted as they are considered self-employed income.
Requesting or renewing a certificate of exemption
To request a certificate of exemption complete our Request for PAYE exemption from tax on schedular payments (IR332) form.
All COE holders with certificates expiring in March will receive renewal requests from us during January and February of the same year.
If you choose to renew your certificate, we'll send your new one in time for the beginning of the tax year (1 April).
Time period for certificates of exemption COEs are credit card-sized and may be issued for up to five tax years. We'll determine the length of time based on your tax record.
Source: IRD Website 7.3.17.
You can apply for a certificate of exemption (COE) on schedular payments if you meet certain eligibility criteria. This means you won't have tax deducted from your payments.
What's on this page
Eligibility for a certificate of exemption
To be eligible you need to:
- be in business
- receive schedular payments that are subject to tax under Schedule 4 of the Income Tax Act 2007
- from 1 April 2017*, be paid by someone other than a labour hire business under a labour hire arrangement**, and
- have a good tax compliance history with us (returns filed and payments made on time).
** non-residents for tax purposes are able to apply for a COE if being paid by a labour hire business under a labour hire arrangement.
If you're a contractor with a COE, you won't have tax deducted from your payments. A COE doesn't apply to an employee receiving salary or wages with PAYE deducted.
If you're a contractor being paid under a labour hire arrangement by a labour hire business you can apply for a 0% special tax rate certificate instead if:
- you're a New Zealand tax resident, and
- you have a good compliance history with us.
If you're doing other work (another job) that isn't under a labour hire arrangement you can apply for a COE for those payments.
If you already have a COE
If you already have a valid COE and you receive schedular payments under a labour hire arrangement you can still use your COE for these payments from 1 April 2017 to the earlier of the expiry of your certificate or 31 March 2018. After this date if you want a 0% tax rate, you'll need to apply for a 0% special tax rate certificate.
This only applies to schedular payments you receive on or after 1 April 2017. Before then these payments don't require tax to be deducted as they are considered self-employed income.
Requesting or renewing a certificate of exemption
To request a certificate of exemption complete our Request for PAYE exemption from tax on schedular payments (IR332) form.
All COE holders with certificates expiring in March will receive renewal requests from us during January and February of the same year.
If you choose to renew your certificate, we'll send your new one in time for the beginning of the tax year (1 April).
Time period for certificates of exemption COEs are credit card-sized and may be issued for up to five tax years. We'll determine the length of time based on your tax record.
Source: IRD Website 7.3.17.
Employers assistance
February 2017
Performance Improvement Programmes
New feature in the Employers Toolbox; Performance Improvement Programmes (PIP). Performance Improvement Programmes are a recognised formal mechanism of addressing and attempting to correct sub-standard performance problems when found. The same framework is also a great tool to use in training or up-skilling staff for new roles and challenges
Read More >
Summer Injuries - What Employers should do
During Summer many employees take the opportunity to get outdoors and pursue some sporting activities. For employers this can mean an increase in sick days and ACC claims and it is important to know what to do when employees have injuries outside of the workplace.
Read More >
The Job Description
The written job description (J.D.) used to be something found only in big organisations including central and local Government. Today however, a written job description is a required part of every employee’s employment agreement.
Read More >
Minimum Wage Increase
On 1 April 2017, the adult minimum wage increases by 50 cents to $15.75 an hour. Workplace Relations and Safety Minister Michael Woodhouse said that the starting-out and training minimum wage rates also increase, from
Read More >
Business fined $45k for H & S failings
A cleaning company fined $45k for not following their own Health & Safety procedures after an employee contracted Hepatitus B.
Read More >
Thank you for being a subscriber to our newsletter, if you think this could be useful to any of your business colleagues please feel free to use the 'forward to a friend' feature at the top.
Kind regards
Chris Bowden
Director
Employers Assistance
Tel:+64(9) 447 1527
Fax:+64(9) 447 1528
www.employers.co.nz
Performance Improvement Programmes
New feature in the Employers Toolbox; Performance Improvement Programmes (PIP). Performance Improvement Programmes are a recognised formal mechanism of addressing and attempting to correct sub-standard performance problems when found. The same framework is also a great tool to use in training or up-skilling staff for new roles and challenges
Read More >
Summer Injuries - What Employers should do
During Summer many employees take the opportunity to get outdoors and pursue some sporting activities. For employers this can mean an increase in sick days and ACC claims and it is important to know what to do when employees have injuries outside of the workplace.
Read More >
The Job Description
The written job description (J.D.) used to be something found only in big organisations including central and local Government. Today however, a written job description is a required part of every employee’s employment agreement.
Read More >
Minimum Wage Increase
On 1 April 2017, the adult minimum wage increases by 50 cents to $15.75 an hour. Workplace Relations and Safety Minister Michael Woodhouse said that the starting-out and training minimum wage rates also increase, from
Read More >
Business fined $45k for H & S failings
A cleaning company fined $45k for not following their own Health & Safety procedures after an employee contracted Hepatitus B.
Read More >
Thank you for being a subscriber to our newsletter, if you think this could be useful to any of your business colleagues please feel free to use the 'forward to a friend' feature at the top.
Kind regards
Chris Bowden
Director
Employers Assistance
Tel:+64(9) 447 1527
Fax:+64(9) 447 1528
www.employers.co.nz