Welcome to Bartlett Law’s Crystal Ball. In this issue, we introduce our new staff, highlight recent legal developments and provide reminders for employment-law housekeeping.
We are delighted to welcome Camilla Belich (Senior Associate) and Sarah Dysart (Solicitor) to our team. We also have an exciting newcomer. See below for details.
Equal pay in the news
Equal pay is a hot topic. Since our last Crystal Ball, the Government has made two announcements on equal pay/pay equity.
On 18 April 2017 the Government announced it had reached agreement with trade unions with members in the aged residential, disability and home support sector to put forward to their members a $2 billion proposal to settle equal pay claims (from the Bartlett v Terranova case and associated claims).
If the proposal is accepted, over time it would increase the pay of approximately 55,000 care and support workers to between $19.00 and $23.50 per hour from 1 July 2017, rising to between $21.50 and $27.00 per hour by July 2021. The unions will now hold ratification meetings with their members and we could see this historic deal implemented by July 2017.
On 20 April 2017 the Government released an “exposure draft” of the Draft Employment (Pay Equity and Equal Pay) Bill. The Bill incorporates the pay equalisation principles agreed by the Joint Working Group on Pay Equity (established after the success of the Bartlett v Terranova case), and would see the repeal of the current Equal Pay Act 1972. Consultation on the draft Bill is open until 11 May 2017. A copy of the draft Bill can be found here:
Camilla Belich is our equal pay specialist, and is carefully following legal developments in this area.
New Worksafe “Preventing and Responding to Bullying at Work” Guidelines
The early days of the Health and Safety at Work Act saw a strong focus on physical safety. However it is important to remember that the Act also covers mental health as part of ensuring a safe workplace.
In March Worksafe released updated good practice guidelines for people conducting a business or undertaking (PCBU). We recommend PCBUs check these Guidelines. See:
If you have a problem with bullying at your workplace, we can provide legal advice and assistance.
Case note: Penalty for employer for breaching confidential settlement terms
Many employment relationship problems are resolved through mediated settlements. Often these settlements are confidential and have “non-disparagement” clauses. Several issues can arise from these – what does non-disparagement actually mean, and what happens if these clauses are breached?
The recent case of Lumsden v Skycity Management Limited answers these questions.
The Employment Court said an employer will be liable for a penalty if they breach a non-disparagement provision in a confidential settlement agreement, even if that is an “in-house” breach.
Mr Lumsden reached a confidential settlement at mediation with his then employer Skycity. It included a non-disparagement clause and that he was welcome to apply for any future employment opportunities at Skycity. His employment ended by resignation on the day of the mediation.
He subsequently applied (unsuccessfully) for jobs at Skycity. It transpired that someone had entered “No” in Skycity’s HR computer system to the question “Would you re-employ?” In addition, the “Manager Termination Comments” on the system were not favourable to Mr Lumsden.
The Judge looked at what “disparage” means. The Judge accepted the definition in the Shorter Oxford Dictionary that “disparage” means:
(a) Bring discredit or reproach upon; dishonour; lower in esteem;
(b) Degrade, lower in position or dignity; cast down in spirit; and
(c) Speak of or treat slightingly or critically; vilify; undervalue, depreciate.
The Judge found recording “No” as the response to the re-hire question was disparaging. She found that factual comments could be disparaging and that there is no additional requirement for untruthfulness or fabrication for a statement to be “disparaging”.
The Judge therefore found Skycity had breached the terms of the settlement agreement as soon as the “No” box was ticked. She commented that the case was a salient reminder that the terms of settlement must be carefully considered, but once agreed to, they are binding and enforceable – however unpalatable they may be.
The Judge imposed a penalty on Skycity of $7,500 for breaches of the settlement agreement and ordered that 75% of this be paid to Mr Lumsden. She said there is a need to send a message to parties to settlement agreements that they must comply with the terms they have agreed to.
The lesson from this case is employees and employers must carefully consider all the terms in a settlement agreement, and not ignore what can be seen as “standard” terms (like non-disparagement) because these are legally significant and the parties are bound by and will be held to them.
Employment Standards Legislation Act 2016 – a reminder about updating employment agreements
Don’t forget – as of 1 April 2017 employers must have updated employment agreements to comply with the legislation changes.
Most commonly this will be in relation to availability provisions and secondary employment provisions. Some employers will need to update shift work provisions.
If you are unsure if you need to make these changes or if they should have been made to your employment agreement, please contact us for advice.
Top Tips for winter
Winter can be a time of sickness and fatigue. One of our lawyers, who shall be nameless, once commented to her doctor she was really feeling the cold. His advice? Buy warm underwear.
For an employment law (as opposed to fashion) perspective, for employers we suggest:
- Ensure your staff take their rest and meal breaks
- Encourage sedentary workers to get up from their desks regularly, and, if the weather is reasonable, get some fresh air
- Perhaps offer free flu vaccinations
- Monitor staff fatigue levels – remember, tired staff are more likely to make mistakes/have accidents
- Perhaps have a mid-winter treat, such as a special morning tea
- Remember that employers can ask staff to take annual holidays. If agreement can’t be reached, employers can, on 14 days’ notice, require an employee takes some of his/her annual holidays
- If a staff member is sick, encourage them to stay home. If an employee has used all his/her sick leave entitlement, you can grant additional leave, or leave in advance. Employees with no sick leave left can ask to use their annual holidays, or to take unpaid sick leave.
For employees, we suggest:
- Don’t go to work if you are unwell
- Try to get some fresh air each day
- If you are struggling with the winter-blues, or fatigue, tell your employer or manager. They can’t help you if you don’t tell them how you are feeling
- Plan a mid-winter long weekend
and don’t forget that warm underwear!
We have three recent arrivals – two lawyers and one baby!
Camilla was admitted as a Barrister and Solicitor of the High Court of New Zealand in 2007. Since then Camilla has worked in employment law in New Zealand and in England and Wales, qualifying as a Solicitor of the Senior Courts of England and Wales in 2011. Camilla has worked on several high-profile cases and multi-claimant or class action claims, including acting as Instructing Solicitor in the Court of Justice of the European Union in Z.J.R. Lock v British Gas Trading Ltd (Case C-539/12), a landmark case on interpreting the European Union Working Time Directive. Prior to returning home to New Zealand in 2016, Camilla was part of the award-winning Employment Law team at UNISON Legal Services in London (the Lawyer Awards: Employment Team of the year – Winner 2014, The Solicitors Journal Awards: Employment Team of the year – Winner 2016).
Camilla has experience providing high quality advice and representation for employees, trade unions and large organisations. Camilla also has a particular interest in and is our expert in employment discrimination cases including equal pay.
A Wellingtonian, Sarah recently graduated from Otago University and was admitted to the Bar in December 2016. She has a keen interest in advancing her legal skills and knowledge, and is experienced in legal research and litigation support. She is enjoying working as a junior to two Queen’s Counsel.
And finally, welcome baby George!
Bartlett Law Senior Associate Charlotte Bates welcomed George into her family on 22 February 2017. Welcome to the world George, from all of us at Bartlett Law!
Penelope, Phil, Charlotte, Camilla, Sarah, Andrea and Suzanne