Welcome to Bartlett Law’s Crystal Ball. In this issue, we highlight what the new Government is proposing for employment law, recent legal developments and share some “Top Tips” to get you through winter.
Employment Relations Amendment Bills
There are currently two Amendment Bills to the Employment Relations Act making their way through the legislative process: the Employment Relations Amendment Bill 2018 and the Employment Relations (Triangular Relationships) Amendment Bill.
We outlined the details of the Employment Relations Amendment Bill in our previous article. The Bill is still at Select Committee stage and the Minister for Workplace Relations and Safety, Iain Lees-Galloway, has indicated this Bill, if passed, is not likely to come into force until next year.
The Employment Relations (Triangular Relationships) Amendment Bill has two purposes.
Firstly, it proposes to amend the Employment Relations Act 2000 to permit an employee of one employer (primary employer) but who works under the control and direction of another business or organisation (secondary employer) to join a collective agreement to which the secondary employer is a party (if the employee is performing work covered by that collective agreement and the employee is a member of the relevant union).
Second, the Bill provides for those employees to apply to the Employment Relations Authority or Court to join the secondary employer in to a personal grievance. The ERA or Court must allow this if the actions of the secondary employer have resulted in or contributed to the grounds of the personal grievance. In such cases, the actions of the secondary employer are deemed to be the actions of the primary employer and the secondary employer will be jointly liable for any remedies awarded to the employee. Employees would therefore have an opportunity to raise grievances against the secondary employer, if its actions contributed to the personal grievance.
Submissions on the Bill closed on 11 May 2018 and it is now at the Select Committee stage.
Proposed changes to the Privacy Act
Major changes to the Privacy Act 1993 are being considered in a Bill that is with the Select Committee. Changes in technology and the way personal data is used have meant that the old Act may be repealed and replaced.
The Bill retains the twelve information privacy principles in the Act and retains the Act’s complaints system but would strengthen the powers of the Privacy Commissioner allowing him or her to make binding decisions to enforce the privacy principles. If the matter could not be resolved by the Privacy Commissioner, the person who has suffered a privacy breach could take a complaint to the Human Rights Review Tribunal and seek compensation.
The Bill also requires notification of breaches of privacy when this may pose a risk of harm.
The main proposed changes are:
- The Commissioner’s existing investigation power is strengthened by allowing him or her to shorten the time frame within which an agency must comply; the penalty for non-compliance will increase.
- There will be new criminal offences for knowingly destroying documents when a request has been made for misleading an agency.
- Privacy breaches that pose a risk of harm must be notified to the Commissioner and those concerned.
- The Commissioner may make binding decisions on access requests. These decisions can be appealed to the Human Rights Review Tribunal.
- The Commissioner will be able to issue compliance notices.
- There will be requirements to exercise more control over information disclosed overseas by New Zealand agencies. The changes will better align New Zealand’s privacy law with international standards.
The team at Bartlett Law will keep you updated on changes, but please get in touch if you would like specific advice on any new legislation and how it might impact on you in the workplace.
Case note: Smiths City
In May, the Employment Court issued its decision in Labour Inspector of the Ministry of Business, Innovation and Employment v Smiths City Group Limited. The issue was whether employees (sales people) were entitled to be paid for the 15 minute meeting held each day before the Smiths City stores opened. The Labour Inspector said they should be paid as attending the meeting was work.
The Employment Court decided that the meetings were an integral part of each sales person’s principal activities and therefore part of their work.
This case has received widespread media attention. If employers or employees are not sure if a particular task is work and therefore should be paid for or not, they should seek legal advice.
Penalties against employers – Banning Orders
Labour Inspectors continue to take a hard line against employers who are failing to comply with their legal obligations. In the recent case of Labour Inspector v Victoria 88 Ltd t/a Watershed Bar & Restaurant and Freeman  NZEmpC 26, the Employment Court banned Christchurch businessman Gordon Freeman from employing staff for three years due to repeated employment law breaches. Breaching a ban is a criminal offence which can result in a conviction with a fine of up to $200,000, a three-year prison sentence, or both.
Mr Freeman was held to have withheld pay from employees and subjected employees to “serious and persistent breaches of minimum employment provisions”. Employees were also subject to a forfeiture clause allowing deductions from final pay including holiday pay for defaulting on the agreed six weeks’ notice period when they left.
The Employment Court held the forfeiture provisions in the agreements were unenforceable penalty provisions. In addition to the banning orders, Mr Freeman and his business were ordered to pay penalties of $20,000 with nearly half being paid to employees as outstanding wages.
Rude or just French?
In an unusual case that unsurprisingly attracted a lot of media attention, a French waiter fired for being “aggressive, rude and disrespectful”, said his behaviour wasn’t out of line, he was just French and claimed discrimination against his culture.
Guillaume Rey worked as a waiter for a Vancouver restaurant. After he was dismissed he filed a complaint with British Columbia’s Human Rights Tribunal against his former employer claiming discrimination. In alleging the discrimination Rey said French culture just tends to be more direct and expressive. His former employer sought to have the complaint dismissed but the Human Rights Tribunal member denied the application and the matter will be heard at a full hearing in due course.
It is interesting to note that the Tribunal member wrote in her decision that Mr Rey would have to provide “evidence about what exactly the stereotype is with respect to people from France”.
In New Zealand it is unlawful to discriminate in employment based on race or ethnic or national origins, which includes nationality or citizenship. While employers in NZ do need to make some adjustments for individual styles and personalities, an employer still can set out expected levels of behaviour and good conduct in the workplace. If, for example, an employer was faced with the same argument from a French employee, they may be entitled to lawfully dismiss such an employee but only if they had raised their concerns with the employee and given him or her an opportunity to change, and the concerns were justified in the first place.
Workplace sexual harassment and bullying is topical at the moment. It is also an area we are seeing more frequently in Employment Relations Authority and Employment Court decisions.
A frequent criticism of employers is that complaints made by employees of inappropriate behaviour were not properly investigated. As with any alleged misconduct or inappropriate workplace conduct, it is crucial for an employer to take steps to ensure the complaint is thoroughly investigated while ensuring fairness to both the complainant and the respondent (the person complained about). In some cases is it more appropriate to engage an external investigator to investigate the complaint. We can help with any queries about investigations, conduct them, or advise employees being investigated.
Charlotte Bates will be leaving Bartlett Law in August to pursue an opportunity in Human Resources. We would like to thank Charlotte for her work and collegiality at Bartlett Law and we know you will all join us in wishing her all the best for an exciting and stimulating career in HR.
Top tips to get you through winter
Winter is the season for gloves, hats and umbrellas. It is also the season for losing them! Try writing your phone number on the label or sticking it on the umbrella’s handle; you’d be surprised at how often lost items are returned.
Winter is also a time for long evenings at home and enjoying something special.
Feeling cold and mizzy? Got the Winter blues? Don’t wine, we can help. Mull over our recipe for mulled wine. It’s easy! And it serves 4-5. Double the mixture for double the servings.
Total time: 20 mins Prep time: 5 mins
Cook time: 15 mins + Happy time: As long as you make it last
- 1 (750mls) bottle of DRY red wine (kind of like our Business Manager’s humour)
- 1 orange – sliced. (Circles is too easy – why not try cutting the slices into stars?)
- 8 whole cloves
- 2 cinnamon sticks
- 2 star anise
- 2-4 tablespoons sugar or honey to taste (or your preferred sweetener)
- Optional: Add in ¼ cup of brandy (of course, you can have a small sample taste of that first if you wish)
- Optional: Garnish (orange, lemon or lime, extra cinnamon sticks, extra star anise)
- Combine all the ingredients in a saucepan, and heat just barely to a simmer over a medium-high heat (Don’t boil the mulled wine – Goodness! You wouldn’t want to boil off the alcohol!)
- Reduce the heat to medium-low, cover, and let the wine simmer for at least 15 minutes – or up to 3 hours – if you are of a patient disposition!
- Strain, and serve warm with your desired garnishes. Do not put the garnishes in before serving or your mulled wine will be sour
- Consume. Smile and enjoy Winter.