Beminded-nz

We’ve just moved past the midway point of the year (the 2^nd of July in case you are wondering!) and it’s a good time to check in on what’s been happening in the world of HR and employment law. There’s been a fair amount of activity over the year so far, and it’s likely there are legal rulings and updates that will affect your business— read on for more.

Parental Leave Payments are going up

From 1 July 2022, parental leave payments will increase by 6.33% to match the rise in the average weekly earnings.

For eligible employees, and self-employed parents, the maximum weekly rate will increase from $621.76 to $661.12 gross per week. Eligible parents are entitled to payments equal to their normal pay, up to the current maximum rate.

For self-employed parents, the minimum parental leave payment rate will increase from $200 to $212 gross per week, to reflect the increase to the minimum wage to $21.20 per hour (effective 1 April 2022).

These payments are made by the Government. Employers do not have to provide any paid parental leave for employees. However, some employers offer paid parental leave as an additional work benefit as another lever they can pull in the constant war to attract and retain talent.

Takeaway delivery driver – court rules driver was an Employee

The Employment Relations Authority has ruled that a driver delivering takeaway via an online application was an Employee of the company providing the platform, rather than a Contractor, as stated in his Employment Agreement.

The driver sometimes struggled with spoken English, and had worked for the business for almost two months when he was disconnected from the app after a Restaurant owner complained about his attitude. The driver raised a personal grievance with the employer, whilst the respondent claimed that he was an independent contractor.

In this case, the Authority determined that the driver was an employee. However, it’s important to note some very relevant factors the Authority took into account, in this particular case:

The written agreement was in English and stated that the applicant was an independent contractor. The employer did not provide a copy of the agreement and did not explain the terms or the agreement to the worker. Furthermore, the Applicant was unable to get advice on the agreement before signing.
The driver had to indicate his availability for rosters in advance, he couldn’t just log in and accept orders as they arose. Although he had the freedom to indicate his availability, the business model meant there was significant control over the applicant, and when he was working.
Although the applicant used his own vehicle, and did not have any signage, the drivers were effectively the ‘public face’ of the business, and therefore the drivers were essential and integral to the respondent’s business model.
There was no ability for the applicant to expand his customer base, or leverage his contractor status to his advantage, there was no evidence that he was in business on his own account.

Uber case still before the Court

In another case before the Employment Court, Uber is awaiting the decision of Chief Judge Inglis regarding whether or not Uber’s relationship with its 6000-or so New Zealand drivers is one of an Employer and Employee, or that of an Employer and Independent Contractor relationship.

The applicants have argued that the global rideshare company exercises intense control, with oppressive provisions and ‘difficult and obscure’ terms of engagement. Uber dictates the fares and delivery fees, can alter the terms of contract at any time (requiring drivers to accept the new terms in order to continue using the app) and can terminate a driver at any time. In addition, the applicants believe that the reward system used by Uber doesn’t provide choice and reward for the drivers.

The respondents have stated that the application is merely a facilitator and ‘match-maker’ for drivers and passengers. Drivers are able to log-in and drive in whatever car they would like (as long as it’s not too old), whenever, and wherever they liked.

It will be interesting to see the outcome of this case, as Uber faces challenges to its business model in different parts of the world.

Until last month, Uber was banned from Geneva after Switzerland’s highest court agreed that its drivers should be considered employees, and not independent contractors.
Last month, in Australia, Uber and the Transport Workers Union signed a deal to regulate the rideshare and food delivery industry.

Watch this space for the ruling, we’ll update you when there is more news.

Much needed overhaul to the Holidays Act

The Government has accepted the Holidays Act taskforce recommendations, which aim to make the Act clearer for both employers and employees.

The Holidays Act has faced significant scrutiny from both Unions and Employers as a challenging piece of legislation to interpret and implement, with many businesses, including Government Departments back-paying millions of dollars to employees due to incorrect calculations.

These changes have yet to be implemented, however key changes include:

Clearer formulas to be used to calculate annual, bereavement, parental, family violence, alternate public holidays and sick leave.
Bereavement leave and Family Violence leave entitlements available from the first day of employment.
Sick leave to accrue from the first day of employment.
Sick and Family Violence leave to be available in part days.
Bereavement leave expanded to provide three days leave for more family members, including cultural family groups and more modern family structures.
Changes to employee entitlements whereby employees can take leave in advance on a pro-rata basis.
Employees returning from parental leave will be paid at their full rate for all of their annual holidays.
The Act will provide greater clarity on the inclusion of discretionary payments such as bonuses and commission payments. This means that these payments will be included in all calculations to ensure that the holidays you take will be based on what you have been paid.
New calculations requiring contracted, rostered or average hours to be used to determine the amount of an employee’s four-week entitlement
New calculations to determine whether a day is otherwise a working day, for the purposes of calculating public holiday entitlements
New rules around annual closedowns
New rules around paying the additional 8% holiday pay ‘as you go’

Fair Pay Agreement Bill

The Government has introduced Fair Pay Agreement legislation into Parliament, it is now at the Select Committee stage. This legislation brings together Employers and Unions within a sector to bargain for minimum terms and conditions for all employees either in that industry or occupation. Support will be provided to both parties to help them navigate the bargaining process and help them reach a resolution, as well as specific processes to ensure compliance.

Protected Disclosures (Protection of Whistle-blowers) Act 2022

The Protected Disclosures (Protection of Whistle-blowers) Act 2022 replaces the Protected Disclosures Act 2000 and came into force on 1 July 2022. It continues to facilitate the disclosure and investigation of serious wrongdoing in the workplace and provides protection for employees/workers who report concerns. The change has been made to overcome a lack of clarity and some issues with the existing framework. The Act 2022:

Extends the definition of ‘serious wrongdoing’
Enables people to report serious wrongdoing directly to an appropriate authority at any time
Strengthens protections for disclosers by specifying what a receiver of disclosure should do
Clarifies the potential forms of adverse conduct disclosers may face
Clarifies internal procedures for public sector organizations, and requires them to state how they will provide support to disclosers

Recommended action: It is a good time to update your workplace policies and procedures to reinforce the encouragement and protection of good-faith disclosures.‍

New visa process

A reminder that the new Accredited Employer Work Visa process came into effect on 4 July 2022. This means that an employer must be accredited in order to employ a migrant worker on an employer-supported work visa.

We have produced a guide to the new visa which will be useful if you currently employ, or are planning to hire migrant workers and need some help navigating this new process. If you would like a copy of the guide, please email us at hello@thepeopleplace.co.nz with ‘AEWV Guide’ in the subject line and we will send you a copy in return.

As always, our experienced Consultants are available to help you with questions on any of the above updates. Feel free to give us a call on +64 9 300 7224.