We have already seen a flurry of employment legislation developments this year. With the mid-year point just passed, we look at the changes and what is on the horizon for the rest of 2023.
Sexual harassment
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 came into force on 13 June 2023. The Act extends the time available to raise a personal grievance for sexual harassment from 90 days to 12 months. This significant change aims to improve the personal grievance process for a victim of sexual harassment by allowing more time to decide whether to raise a personal grievance in what can be a challenging situation.
All new employment agreements entered into after 13 June 2023 must specifically reference the 12 months within which an employee can raise a personal grievance for sexual harassment. The requirement to specify 90 days for other types of personal grievances continues to apply. Employers do not need to update existing employment agreements but the new 12-month timeframe will apply.
New theft by employer Bill
The Crimes (Theft by Employer) Amendment Bill proposes to amend the Crimes Act 1961 to specify that an employer commits theft if it intentionally does not pay an employee money owed under an employment agreement (eg, wages or salary) or otherwise required by law (eg, holiday pay).
The proposed new offence is designed to give a clear direction to employees that they have the right to be paid what they are owed and to streamline existing processes. The Bill provides that upon conviction, for an individual, the maximum penalty is one year’s imprisonment, a fine of $5,000 or both. For any other employer, such as a company, the maximum penalty is a fine of $30,000.
Protection for migrants
The Worker Protection (Migrant and Other Employees) Bill received Royal Assent on 6 July 2023 and will come into force on 6 January 2024. The omnibus Act amends the Immigration Act 2009, the Employment Relations Act 2000 and the Companies Act 1993. It aims to improve compliance by expanding the powers of the labour inspectorate and Immigration New Zealand and by supporting greater collaboration between the two regulators to deter employers from exploiting migrant workers. The Act strengthens current offences and penalties for exploitation, introduces three new Immigration Act infringement offences and amends the Companies Act to allow the court to disqualify directors where there has been exploitation or trafficking.
Rapid-fire round-up
- Restraints of Trade: The Employment Relations (Restraint of Trade) Amendment Bill has had its first reading and will be considered by the Education and Workforce select committee. The Bill aims to prohibit the use of restraint-of-trade clauses in employment agreements for lower income employees. It would also require an employer to pay the ex-employee during the restraint period.
- Health and Safety Representatives and Committees: The Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Act 2023 received Royal Assent on 12 June 2023. The Act seeks to reduce work-related harm by increasing access to health and safety representatives and committees by removing the prior thresholds that excluded smaller PCBUs (persons conducting a business or undertaking).
- Shared Parental Leave: The Parental Leave and Employment Protection (Shared Leave) Amendment Bill was drawn as a member’s Bill failed at its first reading and is now at an end.
- KiwiSaver: The Employment Relations (Protection for Kiwisaver Members) Amendment Bill 2023 was introduced in June 2023. The Bill seeks to restore prior protections. It proposes to amend the Employment Relations Act 2000 to include a personal grievance if the employee’s employment has been adversely affected because the employee is a member of a KiwiSaver scheme or a complying superannuation fund. While the amendments do not propose to prohibit a total remuneration approach, they would allow an employee to bring a claim where the employee’s total remuneration (which includes the employer’s KiwiSaver contributions) is the same as an employee who has opted out of KiwSaver.
- Prohibited grounds of discrimination: The Human Rights (Prohibition of Discrimination on Grounds of Gender Identity or Expression, and Variations of Sex Characteristics) Amendment Bill was drawn as a member’s Bill in August 2023. It seeks to include gender identity or expression and variations of sex characteristics as prohibited grounds of discrimination under the Human Rights Act 1993. The Bill would also enable employees to bring personal grievance claims where they have experienced that type of discrimination in their employment
- And finally, there is no Bill yet for the proposed new Holidays Act, public consultation on the legal definition of a contractor has been delayed, the income insurance scheme has been shelved and parental leave payments have gone up. From mid-2024, the government will also provide for KiwiSaver contribution of 3%!
Jodi Sharman is a partner and Matthew Morrissey is a solicitor at Hesketh Henry. Sharman is a member of the ADLS Employment Law committee.
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