Health and safety changes

The Minister of Workplace Relations and Safety, Brooke van Velden, has announced a host of health and safety reforms - all slated to be progressed this year. 

Carve out for small businesses 

Will your business be covered by the new health and safety exemption?

Small low-risk businesses will be exempted from certain Health and Safety at Work Act requirements. The primary duty of care will be amended so that these businesses only need to manage critical risks i.e. those that could cause death, serious injury or serious illness, and to provide basic workplace facilities. 

Landowner liability

Do you own or control land on which sporting or other recreational activities take place?

The law will be amended to confirm that landowners are not responsible for those using their land for recreational activities. Health and safety responsibilities would fall only on the organisation running the activities. 

Director and officer duties

Are you up-to-date with current and potential future obligations on business managers and directors?

The Act will be amended to make clear that “day-to-day management of health and safety risks will be left to managers so that directors and boards can focus on governance and the strategic oversight of the business”. 

Approved Codes of Practice (ACOP)

Do you work in an industry which may need (or get) a new safety code?

Individuals and groups (such as industry organisations) will be able to draft ACOPs, which the Minister would then approve against a set of standards. This is intended to speed up the issue of codes and ensure they ‘make sense’ for those who deal with the relevant risks.  

Other proposed changes

Focus on critical risk: The primary purpose of the Act would be sharpened to focus on critical risk, with the aim that it would reduce ‘tick-box activities’ that don’t protect workers from serious harm.

Notification requirements: Notification to the regulator would only apply to ‘significant workplace events’ involving ‘deaths, serious injury, illness and incidents’. It is unclear how this will differ from the current Act, which requires PCBUs to notify the regulator of ‘notifiable events'.

Clarification of boundaries: The boundaries between the Act and other regulatory systems that manage similar risks are to be clarified. The Minister considers uncertainty in this area has been the source of over-compliance and confusion. 

Road cone hotline: The Minister announced that there will be a road cone hotline for the public to report excessive road cone usage, which WorkSafe will then investigate. 

For more information, see our article here.

New ‘gateway’ test for determining whether a worker is an employee

Is your business at risk of a claim that its contractors are really employees?

Following the Court of Appeal’s decision that four Uber drivers were employees rather than independent contractors, Minister Brooke van Velden aims to introduce legislation that will prevent independent contracting relationships being challenged – if they meet four criteria:

1. There is a written agreement with the worker, specifying they are an independent contractor
2. The business does not restrict the worker from working for another business (including competitors)
3. The business does not require the worker to be available to work on specific times of day or days, or for a minimum number of hours OR the worker can sub-contract the work
4. The business does not terminate the contract if the worker refuses to accept an additional task or engagement.

If these ‘gateway’ requirements are all met, relevant contractors will be prohibited from raising a legal claim to be employees. For more information, see our article here. 

Employment law changes

There are proposals for a range of amendments to the Employment Relations Act, all aimed at making business easier for employers, but potentially creating significant uncertainty.

Removal of unjustified dismissal protections for high income employees

Are you ready for the new high-earner rules?

The Government has announced its intention to implement a NZ$180,000 income threshold above which personal grievances for unjustified dismissal cannot be pursued. While this will only cover approximately 3.4 percent of the workforce, those affected could be ‘fired at will’. Employers would not be required to have a good reason for dismissal, or to follow any process.

The threshold will apply to new employment agreements once the law is introduced, and to existing employment agreements after a 12 month transition period.

For more information, see our article here.

Reduction in remedies for employees

Will your business adopt a more robust approach to disciplinary and performance processes?

At present, the Employment Court and the Employment Relations Authority can only reduce an employee’s remedies if they have engaged in behaviour which is both blameworthy and which created or contributed to the personal grievance. That threshold looks to be extended to allow reductions in remedies to take into account general poor behaviour and performance.

This will also be accompanied by a reintroduction of the ability of the Authority and the Court to reduce remedies by 100% (something removed by the Employment Court in 2016). A mandatory 100% reduction in remedies is proposed for employees found to have engaged in serious misconduct.

The Minister has also proposed to remove reinstatement as an available remedy where the employee has engaged in poor behaviour or poor performance. 

It has always been a part of the Employment Relations Act that ‘minor’ procedural defects will not make a dismissal or action unjustified. However, under the new approach, the relevant factor will not be the size of the procedural defect, but instead whether the employee has ultimately been treated unfairly. This change will also be accompanied by a new requirement for the Authority and the Court to consider whether the employee’s behaviour obstructed the employer’s ability to meet their obligations to act as a fair and reasonable employer.

Reintroduction of pay deductions for partial strikes

Will you be prepared for a tougher approach to collective bargaining?

The Government has introduced legislation to allow employers to deduct pay when employees engage in ‘partial strikes’. Typically, partial strikes involve employees attending work, but refusing to partake in certain parts of the job. In its proposed form, the Employment Relations (Pay Deductions for Partial Strikes) Amendment Bill allows for either a 10% reduction in pay, or a proportionate amount having regard to extent of the strike.

Termination of employment by agreement

Will your business take up the new ability to negotiate exits?

The Employment Relations (Termination of Employment by Agreement) Amendment Bill is currently at the select committee stage. If passed, this Bill would allow employers to make an exit offer to an employee with the intention of negotiating an agreed end to the employment relationship. Under this amendment, an exit offer could be made without giving rise to a risk that the employee could raise a constructive dismissal claim.

Holidays Act reform

How will you manage the transition to an entirely new holiday system?

Amending the unwieldy and confusing Holidays Act is a top priority for the Government. However, proposed reforms are back to the drawing board after negative feedback on the draft Bill. The current focus is on wholesale reform to achieve simplicity, using an hours based holiday accrual model.