Upcoming Employment Law Changes

14 March 2019

Rest and Meal Breaks

Following the Employment Relations Amendment Act 2018 from 6 May 2019 all employees will be entitled to the prescribed rest and meal break which, unless the parties agree otherwise, MUST BE TAKEN at the prescribed times. While it may be possible for an employer and employee to agree to change when the breaks happen, they cannot agree to a shorter break length.

If parties do not agree to vary the times the defaults are:

Hours of Work Rest Break 10 mins paid Meal break 30 mins unpaid Rest Break 10 mins paid
2-4 hours In the middle    
4-6 hours Rest period 1/3 through meal 2/3 through  
6-8 hours First rest period half way between start and meal Meal half way through work period Second rest period half way between meal and end
8hours Repeat the above pattern    

The Act provides for extremely limited exemptions from these requirements only for the purposes of National Security or essential services (as defined in Schedule 1* of the Act). The exception will only apply if continuity of service is critical to the public interest and the employer would incur unreasonable costs. In the absence of agreement the Court or Authority will enforce the provisions of the Act irrespective of how unreasonable that may be or the consequences of such a decision on either the employee or the employer.

*This states that an employer is exempt from the requirement to provide rest breaks and meal breaks if:

  1. The employer is engaged in the protection of New Zealand’s national security, and
  2. Continuity of service is critical to New Zealand’s national security, and
  3. The employer would incur unreasonable costs in replacing the employee during the rest or meal breaks with another person of sufficient skill and experience and without compromising New Zealand’s national security.

Probationary Periods

Probationary Periods will now enjoy a lot more attention than before, due to the amendments to the Employment Relations Act around Trial Periods. Trial Periods will only be enforceable where a company employs 19 staff or less. Businesses employing 20 and more will now have to rely on a probationary period to terminate the employment of an employee that recently started.

An employer may require a newly hired employee to serve a period of probation before the permanent appointment of the employee is confirmed. The purpose of probation is to give the employer an opportunity to evaluate the employee's performance before confirming the appointment.

However, employers are required to justify the dismissal of probationary employees in much the same way as they are required to do in the case of any other employee, with the possible proviso that the Courts may be disposed, in the case of the dismissal of a probationary employee, to accept reasons slightly less compelling than they would require in the case of employees of longer standing.

The period of probation should be determined in advance and must be of reasonable duration, determined with reference to the nature of the job and the time it takes to determine the employee's suitability for continued employment. The permissible period of probation will clearly vary from case to case, and will probably be longest in the case with more skilled work.

During the probationary period, the employee's performance should be assessed and, if necessary, the employee should be given reasonable evaluation, instruction, training, guidance or counselling. If the employer considers the employee's performance below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. The same obligation arises if the employer considers the employee incompetent.

If there is no improvement, the employee's probationary period may be extended further, or the employee may be dismissed. The former option may be chosen only for a reason that relates to the purpose of probation - i.e. to give the employer a further opportunity to assess the employee's work performance and not, for example, as a penalty.
Whether the employer decides to extend the probation period or dismiss the employee, the employee must be invited to make representations, either personally or through a support person and the employer must consider those representations.

It is very important to keep proper records of everything during this entire process. Request the employee to sign off any minutes or send minutes to him/her for review after each step.

Probationary periods need to be clearly outlined in the Employment Agreement. Our Employment Agreement templates already have these clauses in as an alternative to the 90 Day Trial Period.

Minimum Wage rise April 1 2019

In making good on minimum wage promises the labour-led Government raised the minimum adult wage to $17.70 per hour gross. This takes effect from Monday April 1st 2019.

That's a raise of $1.20 per hour to the adult rate. Starting out and training rates also get respective increases. These rates being 80% of the adult minimum rate.

Important to remember if you already pay above the minimum wage there is no obligation to increase all wages respectively, it's just for those where you will be paying less than $17.70 per hour gross. Bear in mind if you pay a 'Total remuneration package' if the KiwiSaver employer contributions once deducted bring the hourly rate to below $17.70 you are required to top it up.

Worth noting that the current Government have promised to raise the minimum wage rate to $20 by 2021 therefore we can expect a similar hike this time in 12 months again.

Domestic Violence Leave

From April 1 2019 the Employer must allow all staff up to 10 days paid leave per annum, in addition to holiday and sick leave, in the case of domestic violence.

Whether or not you believe the Employer should bear the cost of such leave is now irrelevant, it's the law.

It is important for Employers to have a policy in place to outline the rules and protections for all parties in these cases.

As an Employer you need to be aware of your legal obligations while providing your staff members with the flexibility and support they require. This includes more than just paid time off.

A couple of important points of note are:

  • The request for leave may come from the victim or from the person who has a dependent who has experienced domestic violence.
  • The domestic violence may be a historical event, even prior to their employment with you.
  • Employees will be able to raise a dispute if they believe that their employer unreasonably refused a request made under the new provisions, and has 6 months to raise that grievance.

(SOURCE: Employers Assistance, retrieved from www.employers.co.nz)

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