Along with all the legal questions arising out of New Zealand’s response to the global pandemic it has also been a busy time for new and proposed legislation that impacts employment law. This article provides a summary of some recent updates to legislation and some proposed changes on the horizon.
Parental Leave Changes
On 1 July 2020, in line with the Government’s commitment to increase paid parental leave, the government-funded paid parental leave entitlements have been increased.
Primary carers are now entitled to 26 weeks paid parental leave through the IRD managed scheme. Employers do not bear the cost of this scheme and the payments are capped at a maximum payment of $606.46 (before tax) per week.
Also, the keeping in touch hours allowance has increased to 64 hours. Keeping in touch hours are designed to keep employees connected to their workplace and enable them to work limited hours without losing their parental leave entitlements.
Employment Relations (Triangular Employment) Amendment Act 2019
The amendments to the Employment Relations Act 2000 (regarding triangular employment relationships) came into force on 28 June 2020.
Triangular employment relationships occur when an employee is employed by one entity but working under the control and direction of another entity (the controlling third party).
A controlling third party is defined as:
- a person who has a contract or other agreement with an employer under which an employee of the employer performs work for the benefit of the person; and
- a person who exercises, or is entitled to exercise, control or direction over the employee that is similar or substantially similar to the control or direction that an employer exercises, or is entitled to exercise, in relation to the employee.
Common situations where these arise are a secondment or where an employee is employed by a labour-hire company, recruitment company or employment agency and the employee is then assigned to a third party.
Under the changes employees or an entity can seek to have a ‘controlling third party’ joined to a personal grievance.
The steps for this are:
- The employee must raise a personal grievance with their employer; and
- The employee or the employer must notify the controlling third party that they consider that the party has contributed to the employee’s grievance. This must be done within 90 days of personal grievance raised.
In the event proceedings are filed the employee or employer can apply to the Employment Relations Authority to have the ‘controlling third party’ joined to the proceedings.
The Employment Relations Authority must grant this application if it is satisfied that:
- the alleged controlling third party was appropriately notified of the grievance;
- there is an arguable case the party is a ‘controlling third party’; and
- the alleged controlling third party caused or contributed to the personal grievance.
If through the proceeding it is established the party is a controlling third party and the employee has a valid personal grievance, the Authority must consider the extent to which the controlling third party’s action caused or contributed to the personal grievance. The Authority can then apportion remedies in accordance with each party’s contribution to the personal grievance.
Privacy Act 2020
The new Privacy Act 2020 comes into force on 1 December 2020.
This long-awaited change to legislation will see some key changes to the current regime including:
- It will become mandatory for businesses or organisations to notify the Office of the Privacy Commissioner and the affected individuals, of a privacy breach that has caused or is likely to cause serious harm.
- The Privacy Commissioner will have new powers including the ability to issue compliance notices to businesses or organisation to comply with the Privacy Act.
- New criminal offences. It will be an office for a person to obstruct, hinder or resist the Commissioner in the exercise of their powers or refusing or failing to comply with any lawful requirement under the Act. The offence is punishable by a fine up to $10,000;
- Overseas businesses that carry on business in New Zealand will be subject to the Act’s privacy obligations; and
- There will be some changes to the current privacy principles, including a new privacy principle 12 which regulates the way personal information can be sent overseas.
The Equal Pay Amendment Act 2020 comes into force on 7 November 2020. The Act amends the Equal Pay Act 1972. Despite New Zealand law requiring equal pay and pay equity since the 1972 Act was enacted, the ability to raise claims and the mode of determining those claims have not been accessible. A key change to the legislation is the low threshold for an employee or group of employees to raise a pay equity claim. The threshold is that the employee or group of employees have an ‘arguable’ claim.
Employers must then decide within 45 working days whether they believe there is an arguable pay equity claim or that the claim is not arguable. By agreeing that the claim is arguable the employer is not agreeing there is a pay equity issue or that a settlement will result from the pay equity claim process.
The new legislation provides a framework for resolving those issues. A summary of the framework can be found here.
Protected Disclosures (Protection of Whistleblowers) Bill
The Minister of State Services has introduced a Bill seeking to replace the current Protected Disclosures legislation. The legislation is supposed to provide protection to an individual who comes forward about potential serious wrongdoing in organisations. The Minister says the current Act is not working as it should.
The Parliament website states the “bill clarifies the definition of serious wrongdoing, enables people to report serious wrongdoing directly to an appropriate authority at any time, strengthens protections for disclosers, clarifies the internal procedure requirements for public sector organisations and the potential forms of adverse conduct disclosers may face”.
For more information