Edmonds Judd

First Job

Postscript

Fair Pay Agreements Bill

The Fair Pay Agreements Bill was introduced earlier this year; it proposes a framework for collective bargaining of fair pay agreements. The Select Committee is working its way through submissions and will report back to the House in early October.

 

The government believes the current situation of an employer and employee being free to negotiate the terms of employment without being subject to fair pay obligations (provided employment law minimum entitlements are met) marginalises some employees. The draft legislation would introduce a regime where an agreement is established across an entire industry or occupation for mandatory minimum employment terms (such as wages or hours of work).

 

It is fair to say, no pun intended, that the proposed legislation has not been met with open arms by employers. Unions, however, have greeted the provisions in this Bill much more positively. We will let you know the status of this legislation in the next edition of Fineprint.

 

Scams: be vigilant

Scams affect us all – in our bank accounts, credit cards, over the phone, social media, via email or simply being sent a ‘strange’ communication offering you some ‘benefit.’

 

If you are contacted unexpectedly – always hesitate and consider that a communication from someone you don’t know could be a scam. Never, ever click on a link that you don’t know. Keep an eye on your credit card statement; unsavoury characters can hack your credit card details and ‘phish’ your money in the blink of an eye.

 

For help and information on scams, go to www.consumerprotection.govt.nz and click on the Scamwatch button. Netsafe New Zealand is also very helpful, go to www.netsafe.org.nz.

 

New whistleblowing legislation now in force

The new Protected Disclosures (Protection of Whistleblowers) Act 2022 came into force on 1 July.

 

The government says this new legislation provides clearer protection for people to speak up about wrongdoing, while protecting the whistleblowers themselves. It ensures confidentiality around who has made the disclosure, immunity from disciplinary action for making the disclosure and protection from retaliation through the Employment Relations Act 2000 and the Human Rights Act 1993.

 

If your business hasn’t already done so, we recommend you urgently review your whistleblowing policies and procedures so they comply with this new legislation. If you would like some help with this, please be in touch.

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Guest editorial by Miles Workman, Senior Economist, ANZ

In another of our occasional Fineprint guest editorials, we introduce the ANZs Senior Economist, Miles Workman, who has written on the state of New Zealands economy. It would be fair to say the economic outlook in the short-to-medium term is not massively rosy, but there is, however, some solace in that the Reserve Bank wants to contain inflation as much as possible.

Global and domestic inflation risks remain intense, but front-loaded official cash rate (OCR) hikes by the Reserve Bank of New Zealand (RBNZ) are mitigating against the risk that inflation continues to go the wrong way.

Many other central banks across the globe are now underway with their tightening cycle too and making all the right noises. ANZ Research fully expects them to tame inflation in time. The question is, how much tightening will it take and how much economic pain will it require?

War, high inflation, acute capacity constraints, falling house prices and weak consumer and business confidence all suggest downside risks to economic activity. But Covid-volatility is making it hard to separate the noise from the signal.

Provided New Zealand manages to avoid lockdowns in 2022, GDP data should settle down over the second half of the year (Q3 GDP data is released in December 2022).

That means Kiwis need to continue to look beyond GDP for a steer on economic momentum. And there are plenty of indicators suggesting underlying momentum is slipping.

Despite the very low unemployment rate, ANZ’s Consumer Confidence survey shows confidence is softer than during the 2008-09 recession, which is not a time retailers remember fondly.

While building consents are at high levels, ANZ Research’s Business Outlook suggests residential construction is poised to slow. Building cost inflation, construction delays and difficulty achieving presales as house sales and prices fall could very well see some of these consented projects scrapped. Anecdotally, that’s happening already.

There are other reasons to think tougher times lie ahead:

  • While New Zealanders are now free to travel abroad, international tourism isn’t expected to start picking up meaningfully until the 2022-23 summer – so tourist operators could have to navigate through a tough winter.
  • Conditions for key exporters are tough. Key export commodity prices are now slipping with global consumers less willing, or able, to pay top dollar for our produce. Soaring fertiliser prices along with difficulties in getting product to market and finding workers are also weighing on agricultural production.
  • Households are going backwards financially as inflation outpaces income growth. While ANZ Research expects growth in real (CPI-adjusted) hourly earnings will be positive by the end of the year, it’s a mixed blessing for the RBNZ that is, quite rightly, concerned about the possibility of a wage-price spiral developing.

All up, the drivers of economic momentum are particularly complex right now.

Overall, 2022 (which still has some Covid-related volatility to work through) should see GDP growth come in a little below trend (2.2% over the year to December), slipping further in 2023 (2.0%) and 2024 (1.7%). Risks to growth are to the downside.

Inflation will ease; it’s just a question of how high rates need to go (and for how long)

At around 7% year on year, CPI inflation is running at a 30-year high. While there are some significant inflation pressures stemming from global developments, domestic inflation is the primary concern for the RBNZ.

Non-tradables inflation (aka domestic inflation) is running closer to 6% year on year. This is the sticky kind of inflation that tends to be difficult to tame, and right now it’s far too high to be consistent with the RBNZ’s inflation target.

ANZ Research expects OCR hikes, supported by the general monetary tightening underway globally, will successfully take the heat out of inflation in time.

Given current inflation and capacity stretch, ANZ Research expects the RBNZ to deliver more out-sized (50 basis point) hikes in the near term, before pivoting to 25 basis point hikes from October, taking the OCR to a peak of 3.5% in November 2022.

It’s a fine balance for the RBNZ as it weighs up the risk of oversteering (engineering a hard landing for housing, economic activity and inflation) against ensuring inflation pressures don’t spiral out of control.

All up, the rebalancing act the RBNZ and other central banks are currently performing is riddled with risks and uncertainties. But the one thing we can be sure of is that they will be successful in taming inflation, it’s just a question of how high (and for how long) rates need to go.

The views and opinions expressed in this communication are those of the author and may not necessarily state or reflect those of ANZ.

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Over the fence

Health and safety on farms

Between June 2020 and May 2021, WorkSafe New Zealand recorded 12 workplace fatalities in the agricultural sector, while 2,517 workers in the sector had work-related injuries requiring them to have more than a week off work. Any fatality or serious injury which occurs at a workplace is a tragedy and it is therefore important to have health and policies in place which are fit for purpose and protect both employers and employees.

Although it is not a formal duty, it is the responsibility of all individuals in a workplace to identify any hazards, assess their risk, actively take steps to control that risk and to report any hazards they have identified. There are also specific formal obligations owed by both employers and employees which are summarised as follows:

  • Employers: you have a primary duty of care to your employees. There must be a health and safety policy in place that should be regularly reviewed to ensure that the policy takes into account the constantly evolving risks that your employees face. You must also ensure that the policy is being complied with by, for example, checking that your staff wear the correct safety equipment and that the correct safety measures have been taken with machinery, chemicals and animals.
  • Employees: you must adhere to your workplace’s health and safety policy. You must take reasonable care of your own health and safety, and ensure that you do not cause harm to others in your workplace.

Health and safety on the farm is hugely important. Failing to have proper policies in place and/or failing to comply with these policies can lead to serious fines and/or imprisonment.

If you need help with your farm’s health and safety policy and/or have queries around employment or health and safety laws, please don’t hesitate to be in touch.

Stock control bylaw changes

The Tasman District Council (TDC) has recently proposed changes to its stock control bylaws. If these changes are adopted, there will be major implications for the Tasman rural community.

Some of these proposals align with other districts that have already implemented similar bylaws, however some proposals by the TDC go even further.

The TDC proposes introducing further signage requirements to stock warning signs. If the bylaws are passed, all stock warning signs in the Tasman district must be placed in front of the crossing by a distance equivalent to three times the speed limit of the area. A crossing is any part of the road used for the purpose of driving stock across the road. This aligns with Waka Kotahi NZ Transport Agency’s guidelines for best sign locations. There are a number of district councils across New Zealand that have implemented similar bylaws.

Perhaps the most controversial proposed bylaw, however, is the obligation that farmers would have to hold livestock 50 metres back from the road’s exit point until all traffic has passed. There are understandably concerns as to the practicality of this proposal.

Public consultation on the proposed stock bylaws remained open until 1 August 2022. The proposed changes will not only affect the Tasman district rural community, but could also influence other councils to update their stock control bylaws.

It is important to understand your legal responsibilities when moving livestock on roads. To learn more about stock bylaws, contact your local council or look at its website for useful summaries on your obligations.

Live export contracts and force majeure clauses

The live export of cattle often means that farmers receive higher prices for their cattle than they would in the domestic market. Despite this, farmers run the risk of incurring significant loss when livestock exporters cannot meet their obligations under a live export contract (contract entered into by a farmer/s and a livestock exporter that records the terms of selling and shipping livestock overseas).

A livestock exporter may be unable to ship cattle overseas if, for example, they are unable to arrange a ship to transport the livestock. This occurred in May 2022 when livestock exporter Genetic Development (NZ) Limited (GDNZ) was unable to arrange a ship to collect 12,000 or so cattle from New Zealand. GDNZ was forced to abandon the contracts it had signed with farmers across New Zealand and relied on a force majeure clause in the respective contracts to do so.

A force majeure clause allows a party to be released from its obligations under a contract when that party is unable to fulfil their obligations due to unforeseeable circumstances. In the GDNZ situation, some farmers had to sell their cattle on the local market at a lower price than they would have received if the cattle had been shipped overseas.

The GDNZ example shows that farmers should carefully review contracts to understand the implications of force majeure clauses and their ability to receive compensation for loss suffered in the event such a clause is invoked.

If you are involved in live export contracts and are unsure about the wording or implications of a force majeure clause, please don’t hesitate to contact us.

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Business briefs

Fair Pay Agreements Bill on the table

The long-awaited Fair Pay Agreements Bill was recently introduced in Parliament proposing a framework for collective bargaining of fair pay agreements (FPA).

What is an FPA? An FPA is an agreement that establishes mandatory minimum employment terms (such as wages or hours of work) across an entire industry or occupation that exceed the minimum entitlements outlined in employment law. Currently, an employer and employee are free to negotiate the terms of employment without being subject to fair pay obligations, provided the minimum entitlements in employment law are met.

What is the FPA process? A union initiates the bargaining process by applying to the Ministry of Business, Innovation and Employment (MBIE). If MBIE approves the application, the union begins bargaining with an employer association (that represents employers in the relevant industry).

What does this mean for employers? If the negotiation is successful, all the employers in an industry covered by an FPA would have to provide their employees with at least the minimum entitlements required by the FPA, regardless of whether the employer engaged in the bargaining process.

The Bill also proposes granting employees and unions other rights such as the right for a union to enter a workplace without an employer’s consent to meet with employees to discuss FPAs. This may be confronting to some employers, particularly smaller businesses that may be new to collective bargaining.

Next steps: Public submissions on the Bill closed on 19 May 2022, so we now await the Select Committee’s report. The Bill is expected to become law by the end of 2022.

Proposed legislation to address modern slavery and worker exploitation

The government has released a consultation paper proposing new legislation to reduce modern slavery and worker exploitation in New Zealand and internationally. As currently proposed, the legislation may have a material impact on the way businesses operate in this country.

The paper defines ‘modern slavery’ as severe exploitation that a person cannot leave due to threats, violence or deception, including forced labour, debt bondage, forced marriage, slavery and human trafficking. ‘Worker exploitation’ is behaviour that causes material harm to the economic, social, physical or emotional well-being of a person, which essentially includes non-minor breaches of New Zealand employment standards (such as providing no less than minimum wage or annual holiday entitlements).

The legislation as proposed would require:

  • Organisations to take action if they become aware of modern slavery or worker exploitation in their operations or supply chains
  • Medium and large organisations to report on steps they are taking to address modern slavery or worker exploitation in their operations or supply chains, and
  • Large organisations to undertake due diligence to prevent, mitigate and remedy modern slavery and worker exploitation in their operations and supply chains.

Although this proposed legislation is not yet law, businesses should start considering now how these changes will affect the way they operate, and the consequences associated with any breach such as monetary penalties and reputational risk.

Incorporated societies – what’s next?

After many years of consultation and deliberation, the new Incorporated Societies Act 2022 was finally passed on 5 April 2022. The Act’s changes will affect all of New Zealand’s 23,000+ societies.

The legislation puts in place a modern framework of legal, governance and accountability obligations for incorporated societies and the people who run them.

All existing societies have at least until 1 December 2025 to ensure their constitution complies with the new requirements and to apply to re-register under the new Act. Societies that do not re-register by that date will be removed from the register.

Although the Act is now in place, there are still regulations to be developed before existing societies can start the re-registration process. These regulations are expected sometime in the next 12 months.

We can help if you are unsure of your obligations under the Act or would like some help with the transition.

 

Next stage of vaping legislation coming into effect

Changes made to New Zealand’s vaping laws are being phased in, with the next changes taking effect over the coming months. The latest changes require all packaging for smokeless tobacco products and vaping products containing nicotine to include specific labels warning of the health dangers and addictive nature of the products. Critical dates for this labelling are:

  • 11 May 2022: manufacturers and importers (should be achieved by now)
  • 25 June 2022: distributors, and
  • 11 August 2022: general and specialist vape retailers.

The staged approach is to allow for stock rotation of products with non-compliant packaging.

You can find more information on vaping regulation here or don’t hesitate to talk with us if you need some help.

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2021.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Would be compulsory for most Kiwis

Every year, more than 100,000 workers in New Zealand are laid off or lose their jobs through no fault of their own.[1]

In February, the government proposed a new compulsory insurance scheme for all employees. This would provide most Kiwis with 80% of their regular salary for a minimum of seven months if they lose work through no fault of their own (including a health condition or redundancy).

We look at what the proposed scheme would involve and whether you as an employer should prepare.

Why introduce such a scheme?

Mass and dramatic redundancy of workforces has been experienced in New Zealand during the 2007–09 global financial crisis, the Christchurch earthquakes in 2010–11 and the current Covid pandemic. These events cause significant economic stress on employees and their families while also impacting the broader community as there is decreased consumer spending. The government claims the scheme will also help close the income gap and make income support available to people who cannot work due to non-accident-related health conditions.

What would it entail?

The proposed scheme would provide coverage for total loss of work due to redundancy or health conditions (including disability). It will not cover an employee’s reduced hours, reduction from full-time to part-time hours, or unemployment due to a dismissal or resignation.

How much coverage?

To comply with this scheme, employers would have to give a statutory four weeks’ paid notice of termination to their employee. In circumstances where an employer is unable to make that payment, the scheme would pay it and seek reimbursement from the employer’s liquidator.

Employees would then receive 80% of their usual salary for up to a further six months paid by the government. Payments would be capped at an annualised salary of $130,911. In some circumstances, the support could be increased to 12 months if the recipient is using the time to retrain or undertake medically required rehabilitation.

To continue to receive the coverage, each recipient would need to prove they are continuing to look for new work, are taking part in training/further education, are medically unfit for work or undertaking medical rehabilitation.

Who will be eligible?

To be eligible for the proposed insurance coverage, an employee would need to have contributed to the scheme for at least six months in the immediately preceding 18 months. An exemption is proposed for someone who does not meet the contribution timeframe if they have been on statutory parental leave.

Fixed-term and seasonal workers on short-term contracts would only be eligible to receive coverage until the end of their contracted period, ie: if someone lost their job two months before the contracted end date, the scheme will only cover the two-month period of lost work. However, any fixed-term or casual worker who could show a regular pattern of work with an employer and have a reasonable expectation of ongoing employment will be eligible for full support.

The government is yet to issue a position on how the scheme would treat the self-employed or contractors. It is possible this will be dealt with on a case-by-case basis to determine eligibility and ensure work is not being rejected just to gain access to the scheme.

Paying for it

Nothing comes for free. It is proposed that the Income Insurance Scheme will be administered by ACC and, as such, will be funded in a very similar way by levies. The government estimates that it will require a 1.39% per annum levy from both employers and employees to successfully fund the scheme (resulting in a total levy of 2.78% per annum of the employee’s gross annual salary). The levy would be reviewed after two years and, if insufficient to cover the number of people it is supporting, could be raised.

Do I need to make changes to my business?

If the scheme goes ahead, it could become operational in 2024. Until there is a known date and more detail, however, businesses need not take any specific steps to prepare. In the meantime, you should review your own personal insurance or any insurance you offer to your staff.

[1] Employment New Zealand/MBIE.

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


2022 Budget

Commentary on the Minister’s main points

The Minister of Finance, the Hon Grant Robertson, presented the government’s Wellbeing Budget to the House on Thursday, 19 May.

With inflation running at a 30-year high at 6.9%, and similar levels of inflation with most of our trading partners, rising interest rates, the stock market in the doldrums, the knock-on effects of the Ukrainian war and the continuing situation with Covid, the government is walking an economic tightrope.

With an eye on the late 2023 general election, did the Budget give short-term relief for New Zealanders or did it take the long-term view for the good of the country? The government has probably put a dollar each way.

Cost of living

To help mitigate inflation and the squeeze on the lower-middle income sectors, the government has established a $1 billion cost of living relief package. This includes a one-off $350/person cost of living payment for the estimated 2.1 million people earning less than $70,000 per annum and who are not eligible for the winter energy payment. This $350 payment will be made in three instalments from 1 August.

The half-price public transport fare regime (introduced to run from 1 April–30 June) will continue for an additional two months to 31 August, as will the reductions in fuel excise and road user charges. There will be ongoing concessions for Community Services card holders.

The government is attempting to quell some elements of the current supermarket duopoly. On 19 May, it introduced legislation to ban covenants over land as a barrier to supermarkets accessing new sites thus restricting competition. There will shortly be more announcements in response to the Commerce Commission’s recent report on the operation of New Zealand’s supermarkets.

Business

Businesses that had been expecting a significant Budget boost may be disappointed.

The government has, however, announced some support for small and medium-sized enterprises (SMEs) through a $100 million Business Growth Fund. Working alongside the retail banks, the government can buy a minority shareholding in appropriate SMEs. Privately operated and independently managed, the Fund will support SMEs where equity funding may be preferable to debt finance.

The Minister of Finance says, “The Fund would always be a minority investor [in an SME] with a seat on the board, offering guidance and expertise, but always leaving owners in control. [The Fund] will improve SMEs’ access to finance, enabling them to grow, create jobs and increase their contribution to our wider economic development.”

Although the concept is new to this country, similar funds have been successful in countries such as the UK and Australia.

The government has allocated $60 million towards the implementation of its proposed Income Insurance Scheme; it expects the Scheme to be operational in 2024. There is more about the proposal here.

For Kiwis who live in broadband’s ‘worst served’ areas, the government has allocated $60 million to improve broadband infrastructure.

There is $132 million allocated towards industry transformation plans for the construction sector, advanced manufacturing, agri-tech, digital and primary industries.

Health

The health sector is a big winner in this year’s Budget with an allocated $11.1 billion operating budget for the new Health New Zealand entity over the next four years. There is another $1.3 billion earmarked for health capital investments including specific allocations for Whangārei and Nelson hospitals, and the Hillmorton mental health project in Christchurch.

The financial deficits of district health boards will be wiped allowing Health New Zealand to start with a clean slate on 1 July.

Pharmac is to get a major funding boost of an extra $191 million over the next two years.

Climate change

The Emissions Reduction Plan is allocated $2.9 billion from the Energy Response Fund. There is $16 million over four years for community-based renewable energy projects from the Māori and Public Housing Renewable Energy Fund, and $31 million is for a Māori climate action platform.

More highlights

  • Māori and Pacific communities have been allocated a $580 million package across health, social and justice sectors
  • There are changes to the First Home Grants and First Home Loan regimes that take into account the significant increases in house prices
  • The Affordable Housing Fund will receive an additional $221 million
  • Public and transitional housing is allocated $1 billion
  • A new Ministry for Disabled People will be established – $108 million for establishment and support operations, and
  • Further funding has been announced for cultural organisations such as the New Zealand Symphony Orchestra, Royal New Zealand Ballet and the Waitangi National Trust Board.

Although times are tough right now, the government is optimistic that good times will return. Although a $19 billion deficit is expected this year, the government expects a return to surplus in 2025.

The Minister of Finance says, ”Budget 2022 shows the economy is expected to be robust in the near term. It is expected to strengthen from the second half of this year, with annual growth peaking at 4.2% in the year to June 2023.”

We have only had space to outline some Budget highlights. To read in more detail about the Budget
go here.

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.


Copyright, NZ LAW Limited, 2021.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Over the fence

New minimum wage

From 1 April 2022, the minimum wage increased from $20.00 to $21.20/hour. If you haven’t already, you should review your employees’ pay rates to ensure you are compliant with the new minimum wage. For employees on a wage, this is a straightforward process as you only need to ensure that your employees’ wages are at least $21.20/hour. This is not the case for all employees, however, including those on a salary, as it makes it more difficult to calculate if their current pay rate is sufficient when they work overtime.

During busy times, such as the harvest and calving, salaried employees often work hours over and above their regular contract hours. You should check the pay of these employees every pay period to ensure their pay divided by the actual hours they worked meets minimum wage requirements. If not, your employee’s pay must be topped up to at least the minimum wage, regardless of whether any term in their employment agreement says otherwise.

Failing to keep accurate time records could lead to a penalty under the Employment Relations Act 2000 or Holidays Act 2003. You should also take this opportunity to ensure your time recording systems are accurate.

Vaccine mandate ends: how this will affect the rural sector

People employed in education, police, defence and hospitality are no longer required to be vaccinated to carry out their work. Employees in the health, aged care, corrections and border sectors, however, must still comply with vaccine mandates. Any terminations based on vaccination status made before these mandates were dropped are not unlawful, nor are there requirements to reinstate these past employees.

The rural sector is not directly impacted by these mandate changes. However, with many businesses having imposed mandates, they can still choose to implement their own vaccine mandates, but it must be implemented in accordance with a risk assessment.

It is important to be cautious when implementing a vaccine mandate as the case of Yardley v Minister for Workplace Relations[1] found that vaccine requirements for the police and defence force were unlawful and imposed on their right to refuse medical treatment. There is a risk that similar cases could be brought in other employment sectors. Therefore, it’s necessary to undertake a comprehensive risk assessment to determine if a vaccine mandate is required at your farm or rural business.

Vaccine passes are also no longer required for those entering a business. People coming on to farms are no longer required to prove their vaccination status. However, businesses can choose to keep this mandate in place.

Russia Sanctions Act: impact on the rural sector

The Russia Sanctions Act 2022 was recently passed to help combat Russia’s breach of international law and aggressive acts towards Ukraine. The Act came into force on 12 March 2022 and imposes sanctions on individuals and entities involved in the attacks on Ukraine. Sanctions may also be imposed for strategic purposes or to undermine Russia’s economy. The sanctions have extraterritorial application and target travel to and from New Zealand, and impose certain controls over assets and services connected to sanctioned entities. There is further detail in the Act’s accompanying Sanctioned Persons Schedule.

These sanctions are expected to have implications on both imports and exports. Russia’s top imports to New Zealand include crude petroleum oils and potassium fertilisers that are key resources used in the rural sector. It is anticipated that supply chain disruption, shortages in raw materials and fluctuations in prices will result.

Some corporates are also choosing to impose sanctions on Russia. Fonterra has announced it will exit its businesses in Russia and suspend all its exports to Russia. This may have implications for dairy farmers, but Fonterra has stated its exports to Russia total only about 1% of its annual exports (primarily butter).

[1] Yardley v Minister for Workplace Relations [2022] NZHC 291

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


An employer’s issue

Managing workplace health and safety has run the gamut from providing ergonomic chairs and PPE to ensuring appropriate evacuation pathways are clearly marked. Emerging trends from WorkSafe New Zealand, however, indicate that the mental wellbeing of staff should fall under an employer’s obligation to provide a ‘safe’ workplace.

Under the Health and Safety at Work Act 2015, an employer is required to ensure, as far as reasonably practicable, the health and safety of their workers. The legislation defines ‘health’ as both physical and mental health. Historically, most employers have understood this to mean that asking for unrealistic workloads to be met or using bullying tactics on their staff could result in a breach of the Act or a successful personal grievance claim. It was generally accepted that the management of the mental wellbeing of staff outside the employer-employee relationship was assumed reasonably out of the employer’s responsibility or control.

It appears the sentiment regarding this previously held assumption is changing rapidly in both New Zealand and Australia. Workplace health and safety agencies from both countries have stepped in and issued notices to employers who have failed to manage their employees’ general mental wellbeing, particularly where action could have been taken to prevent mental harm or distress.

Recent New Zealand example

An example of this new emphasis is WorkSafe issuing an improvement notice to Te Aroha College in late 2021 for failing to prevent ‘psychosocial risk’ to its staff. Interestingly, this situation arose from rumours circulating about two teachers falsifying permission slips that the school did not take steps to stamp out. The rumours, that were running unchecked, were seen to cause undue distress to the two teachers involved and WorkSafe intervened. This action came as a surprise as WorkSafe publicly states it does not ordinarily step in to ‘individual’ circumstances. By intervening and making ‘an example’ of Te Aroha College, WorkSafe has signalled an increased focus on this area of workplace health.

Australia’s health and safety agency, Safe Work Australia, has issued similar warnings. In 2021 it took action against the Wyndham Clinic Pty Ltd. The clinic was prosecuted for failing to provide structures to prevent bullying in the workplace, including employee-employee bullying. In this instance, a senior employee was seen to use profanities and verbal abuse against another employee (including saying other people did not like that person and did not like working with them). Wyndham Clinic was ordered to pay over A$79,000 in fines and costs for a failure to provide procedures to prevent an employee’s mental harm.

These actions from government agencies indicate that employers must be much more proactive to prevent mental distress in the workplace. In the Te Aroha College situation, the origin of the rumours is unknown, and it was never alleged that the rumours were employer led. The implications are that WorkSafe expects an employer to take steps to proactively manage employee-employee bullying and/or risks to mental wellbeing. In most workplaces, particularly large organisations, employee–employee bullying may be hard to identify. For example, in workplaces such as construction sites, there is a largely accepted behaviour of workplace ‘banter’ that an employer may have always deemed appropriate or, at the very least, considered relatively ‘good natured’. In large organisations where employees are spread over many sites there may be no oversight of employee-employee interactions.

So, what is an employer to do?

Employer steps

A first step for all employers is to ensure there is a suitable and up-to-date workplace mental wellbeing policy. This policy should be very clear on what steps can be taken by an employee who is feeling unduly stressed in the workplace — for all manner of reasons. This should extend beyond typical workplace bullying and into areas such as workload management, limiting and preventing exposure to aggressive or abusive clients/customers, and to management of uncertain situations.

The policy should also include the steps an employer will take to provide support and care to their employee when stress is caused. The policy should be provided to all employees, and employers should take steps to frequently remind them of the availability of support pathways.

Every workplace is unique in its health and safety needs. The Act states that an employer should take steps that are ‘reasonably practicable’, so it’s probably safe to assume you aren’t expected to tuck your staff member into bed at night (in fact, please don’t!), but it is clear that more steps need to be taken. For some employers, enhancing how you take care of employees’ mental wellbeing could include:

  1. Reviewing your workplace policy
  2. Providing your employees with multiple avenues of support and communication (not just through their employer or manager)
  3. Routine staff meetings to raise mental health conversations
  4. Activities in your workplace to help employees manage stress, for example, meditation workshops
  5. Having conversations with individual staff members who appear sad or withdrawn to identify any workplace triggers
  6. Frequently reminding your staff of the clear steps they can take to communicate mental distress to their employer, senior management or external support providers
  7. Discussing how you as the employer or senior manager propose dealing with upcoming uncertainty, such as Covid business continuity planning
  8. Anonymously surveying your staff to monitor wellbeing and ‘pressure points’, and
  9. Regularly auditing your own workplace to check for compliance in workplace health and safety procedures and reassurance that existing systems are working.

Managing the health and safety of employees has always been a changing landscape. It is now clear, however, that there is a shift towards enhancing the policies and procedures that employers must have in place to protect the mental wellbeing of their staff. Given the uncertainty of working in a pandemic-related environment, employee wellbeing is already fragile. Taking the time now to revamp internal policies to help overall staff health is a worthwhile exercise not only to protect the mental wellbeing of your valuable staff, but also as a pre-emptive step for enhanced government-driven focus on this topic. +

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Check systems are in place

Notifications for a privacy breach have increased nearly four-fold since the new Privacy Act 2019 came into force on 1 December 2020. In the period 1 December 2020 to 30 November 2021, 750 privacy breach notifications were received by the Office of the Privacy Commissioner (OPC). One-third of those cases met the threshold for serious harm.

The new legislation makes it mandatory to notify the OPC of privacy breaches that have caused, or have the potential to cause, serious harm to people.

Failure to report a serious breach can result in a Compliance Notice being issued, public notification of the breach and/or a fine of up to $10,000.

Privacy breaches can cause real harm to people. In the serious breach category in the above 12-month period, 36% of serious breaches involved emotional harm, 14% reputational harm and 13% identity theft. Other harms were classified as financial harm, threats of harm and so on.

Take great care with personal information

Human error causes the majority of reported serious breaches. Human error includes accidental disclosure of sensitive personal information, data entry errors, confidentiality breaches, redaction errors, postal and courier error.

Email error accounts for over a quarter of all reported serious privacy breaches. The OPC recommends any organisation should have good systems and processes for electronic communications. Emailers should:

  • Use the BCC option when sending to multiple recipients
  • Double-check attachments are correct, and
  • Have a send delay.

Senders should always check their email draft very carefully when including any sort of personal information. It is also useful to ask a colleague to do a fresh-pair-of-eyes review of any draft email that includes personal information.

Privacy breaches occur in the public and private sectors, as well as in not-for-profits; all three sectors store some form of personal information such as health care and social assistance data.

To read more about privacy breaches in the first 12 months of the new legislation, go here.

NotifyUs

If you want to either report a serious privacy breach or are unsure if your potential breach meets the threshold for notifying the OPC, use  the anonymous self-assessment tool, NotifyUs, to help you decide.

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Postscript

New holidays legislation

The complexities of calculating holiday pay and other leave provisions under the current Holidays Act 2003 should be a thing of the past when new legislation is expected to be introduced to Parliament mid-year.

A government-appointed taskforce has made recommendations to simplify provisions and to provide a commonsense application in the workplace. It is proposed, for example, to allow employees to take annual leave on a pro rata basis during their first year of employment rather than having to wait a full year before being entitled to paid annual leave.

The advent of this new legislation will, we hope, bring much relief to not only employees but also payroll staff who have had to grapple with the anomalies of the current Act. +

Minimum wage increased from 1 April

In February, the government announced that from 1 April 2022 the minimum wage would rise to $21.20/per hour.

It also announced that the starting-out and training minimum wage rate would increase from $16.00 to $16.96/hour from 1 April.

All employers should ensure their records are up-to-date and that they are paying their employees the correct hourly rate. +

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650