Publications & Articles

  • The Employment Relations (allowing higher earners to contract out of personal grievance provisions) Amendment Bill

    A bill is being considered by Parliament which would allow higher income earners to contract out of the personal grievance provisions of the Employment Relations Act 2000.

  • Employment Court clarifies employer obligations in medical incapacity cases

    In a recent decision, the Employment Court provides clear guidance on the steps an employer must take when terminating employment of a long term sick or injured employee. SBM Legal acted for the employer in the case, The Warehouse Limited, and was successful in showing that the company's process and decision to dismiss the employee were justified.

  • Unable to reach an agreement?

    A recent news article reported a union and an employer were still bargaining for a collective agreement 3½ years after bargaining commenced. FIRST Union and a Dunedin Mitre 10 store are still unable to agree on a collective agreement, even though collective bargaining was initiated on 18 October 2013.

  • Sleeping on the job – is it acceptable?

    Cases about sleeping on the job come before the Employment Relations Authority and Employment Court on a regular basis. Snoozing on the clock is an age old phenomenon.

  • Personal information – what is it?

    You may not be aware that the Privacy Commissioner now has the ability to publish an “advisory opinion” and has done so for the first time on what does and doesn’t constitute “personal information” (information about an identifiable individual).

  • Money, money, money, money…

    The above is a line from the theme song from now US President Donald Trump’s TV series, The Apprentice, making it possibly less acceptable for use these days than it once was. On a similarly divisive note, the minimum wage is a political hot potato.

  • Workplace investigations

    In 2016 the spotlight was on workplace investigations and the level of scrutiny required when conducting those investigations. In 2015 and early 2016, it appeared that the courts were becoming more pedantic and willing to scrutinise every aspect of a workplace investigation. However, employers will be somewhat relieved to know that by the end of 2016, this was changing.

  • Court of Appeal clarifies employer obligations in disciplinary process

    In a recent decision of A Limited v H the Court of Appeal has clarified what is expected of an employer when conducting a disciplinary process.

  • Shift work, and the unintended consequences of the hours of work legislation changes

    The Government attempted to deal with the "zero hours" contracts issue by passing legislation which came into force on 1 April 2016.

  • The trials of trial periods

    The decision of the Employment Relations Authority in a series of cases involving Lighthouse ECE Limited attracted significant attention as it involved a dismissal during a trial period being held to be unjustified. This was because the ERA Member held that the wording of the trial period was deficient and therefore that the employer could not rely on the trial period.

  • Making sure you’re paying Christmas Holidays correctly

    Whatever your company, there are always different staffing and pay considerations over the holiday break where forward planning is required.

  • Payroll compliance

    The Ministry of Business, Innovation Employment (MBIE) is continuing to take a tougher approach to non-compliance with employees’ pay. Despite MBIE’s own payroll compliance issues (errors that affect more than 700,000 government employees, at an estimated cost of around $2 billion NZD), it has made a high number of prosecutions against employers in 2016.

  • Employment Relations Authority increases daily tariff for costs recovery

    The Employment Relations Authority has recently issued a Practice Note which increases the “daily tariff” for recovery of legal costs for a successful party to $4,500 for the first day of an investigation meeting. Any subsequent days are set at $3,500.

  • Court of Appeal significantly extends obligations of good faith for employees

    In a recent decision of ASG v Hayne the Court of Appeal stated that the failure of an employee to tell his employer that he was facing criminal charges which involved behaviour which was relevant to his employment duties was a breach of his obligation of good faith.

  • Working Group on Pay Equity Principles

    In October 2015, the Government set up the Joint Working Group on Pay Equity Principles ("the Working Group") to recommend to the Government, principles that provide practical guidance to employers and employees in implementing pay equity for female dominated workforces where the work may have been systematically undervalued (such as nursing and childcare).

  • Chambers praises L&E Global’s Asia-Pacific Members

    All of L&E Global’s Asia-Pacific members were included in the Chambers 2016 rankings for the region, illustrating the success of L&E Global's service strategy – to provide the highest quality expertise across borders, throughout the world.

  • New Health and Safety legislation – finally!

    After significant debate and considerable delay, the new Health and Safety legislation has been passed into law. The new law will be called the Health and Safety at Work Act and comes into force on 4 April 2016. It intends to bring about major change to the current health and safety regime and the health and safety culture of New Zealand businesses.

  • What to be aware of when settling a personal grievance claim

    So, you’ve settled the employee’s personal grievance and avoided the threat of litigation. But before you pat yourself on the back, are you sure the settlement agreement is the end of the story?

  • Costs awards in Employment Court

    The Employment Court is proposing to change the way it gives decisions about the costs of legal representation following the conclusion of a substantive court hearing.

  • New Employment Standards Bill

    The Government has introduced an Employment Standards Bill into Parliament which includes proposals to amend the Employment Relations Act, Holidays Act, Minimum Wage Act, Wages Protection Act and the Parental Leave and Employment Protection Act.

  • Kathryn Beck elected President of the New Zealand Law Society

    SBM Legal is proud to announce that Kathryn Beck has been elected President of the New Zealand Law Society and will take up the role in April 2016.

  • Update on equal pay litigation

    Equal pay is defined in the Equal Pay Act 1972 as “a rate of remuneration for work in which rate there is no element of differentiation between male employees and female employees based on the sex of the employees”.

  • Changes to the ERA from 6 March

    Changes to the Employment Relations Act came into force on 6 March 2015. Here is a summary.

  • Redundancy – clarification from Appeal Court

    For at least the last 20 years it has been a well established part of employment law that the Courts could not substitute their own decision for an employer’s about whether a role should be made redundant. The rationale behind that approach was that the employer knew its business best and was better placed than an independent third party to decide whether a decision was for “genuine business reasons”.

  • Tripartite employment relationships

    The growing use of labour hire companies, and companies outsourcing work to contractors, means more and more employees are at the mercy of third party contracting.

  • I owe my soul to the company store

    In Geenty v GR & TL Burnett Ltd, the Employment Relations Authority allowed an employer to deduct an employee’s debt from wages owed without his consent.

  • Redundancies continue to be closely scrutinised

    In our newsletter earlier this year, we referred to two important decisions by the Employment Court (Brake and Totara Farms) and indicated an employer’s decision to make a role redundant was likely to be examined far more closely by the courts than in the past. We recommended employers make sure that any business/financial reasons put forward for a restructure were carefully researched, accurate and could survive close scrutiny.

  • Caution – drug testing in progress

    The parameters of drug and alcohol testing continue to be tested in the courts. The recent case of Sim v Carter Holt Harvey highlights the need for employers to have a drug and alcohol policy that is thorough, robust and clear.

  • Living at work: where to draw the line

    A recent decision of the Employment Relations Authority demonstrates that an employer must be very conscious of whether an employee is “working” overnight (and therefore entitled to be paid) when the employee works and lives on site. This issue arises out of “sleepover” cases over the last 2 to 3 years in which employees have been found to be “working” when “sleeping”.

  • Putting bullying in its place?

    With the release of WorkSafe New Zealand's Best Practice Guidelines: Preventing and responding to workplace bullying (Guidelines), employment law specialist Bridget Smith outlines what the Guidelines spell for employees and employers confronted with workplace bullying.

  • Restructuring

    One of the most well established principles of redundancy law is that the courts cannot substitute their own decision for an employer’s about whether a role should have been made redundant. In essence, the courts have long accepted that if an employer made a role redundant for genuine business reasons, that part of its decision cannot be challenged.

  • Health & Safety law changes

    The Reports from the Royal Commission into Pike River and a separate Health and Safety task force made it clear that New Zealand’s health and safety laws were not fit for purpose. The government’s response has been a complete overhaul of our health and safety framework.

  • Facebook – when it doesn’t pay to be “friends” with your employer

    Remarkably, nearly half of our population, (around 2.3 million people) are Facebook users. Yet until recently, Facebook had not played a large part in employment law disputes. That is starting to change.

  • Trial periods & work trials

    Late last year, the Employment Court delivered a decision which all employers who take staff on for unpaid work trials or unpaid/poorly paid internships need to note.

  • Are you a twit if you tweet?

    I must confess to not really being up with the latest in technological advances. In fact, I don't mind admitting I could legitimately be described as something of a late adopter. By way of example, Shazam was released in the UK in 2002 and I picked it up in circa 2012. I don't 'Keep up with the Kardashians', and I prefer real life to reality TV.

  • Proposed law changes

    Last year, Cabinet proposed a number of law changes to the Employment Relations Act 2000 (‘ERA’). These were introduced to Parliament on 26 April 2013 in the form of the Employment Relations Amendment bill (‘the Bill’).

  • Drug & alcohol testing: an overview

    According to Benjamin Franklin, "Beer is proof that God loves us and wants us to be happy." However, it appears many New Zealand employers are far from happy about the way their staff are using alcohol and drugs.

  • Employers Strike Back

    While employees have the ability to pursue personal grievances, employers also have the ability to sue employees for breaches of their duties as employees. It is a myth that only the employer can be sued. Employers do have the ability to strike back.

  • Paid breaks for piece rate workers

    If you pay your staff on a commission only or piece rate basis, then you need to be aware of an important decision by the Employment Relations Authority.

  • Kathryn Beck elected NZ Law Society Vice-President

    My involvement with the Law Society has been a longstanding and enjoyable part of my career. I first became involved when I was a relatively junior employment practitioner. At that time I worked on both the local and then the national employment law committees and was part of a team that established networking events for the employment bar that have now become tradition.

  • Progress and technological advancement – what it means in an employment sense

    When I first started working as a lawyer in the Wellington office of one of the big firms, my secretary had worked at that firm, as a legal secretary, for longer than I had been alive. Things had of course changed over those 30 years and I imagine that her role when I worked with her was significantly different to her role when she started in the seventies.

  • Employment Relations Amendment Bill – changes afoot

    The passing of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013, which ‘Mondayises’ Waitangi Day and ANZAC Day, has already brought change in the area of employment law in 2013, specifically in the area of public holidays. Those changes are good news for those employees who work Monday to Friday, which includes many readers of Law News.

  • Happy holidays: the ‘Mondayisation’ of public holidays

    With effect from 1 December 2004, section 4(1A) of the Employment Relations Act 2000 was inserted, which added further guidance to the duty of good faith. Many commentators asked at the time whether you could, or should, legislate a relationship in this way.

  • My way or the highway

    When it comes to performance management, many employers fall short of meeting their obligations, says Bridget Smith. She explains how to ensure that genuine performance concerns are not lost in a debate about the lawfulness of the process.

  • Proposed changes to Employment Relations Act – December 2012

    Back to the future – proposed changes to employment law. When the current National led Government was first elected in 2008, many people anticipated the quick repeal of large parts of the legislation in relation to bargaining and Unions. That didn’t happen. However, four years on, the Government has announced its first major set of changes to our current employment laws, with a raft of proposed amendments to collective bargaining and to Part 6A of the Employment Relations Act.

  • Swearing at your boss … $10,000 – Following your disciplinary process … priceless

    At some stage of our working life most of us will have dreamed of telling a manager what we really thought of them. Most of us also will have resisted that urge, fully aware that abusing our boss can be “career limiting”!

  • Dealing with long term employee absences – when is enough enough?

    Coping with absent employees due to the winter chills and ills is a necessary evil, particularly at this time of the year. Fortunately, for most businesses, this is only a short term inconvenience. However, dealing with long term employee absenteeism, particularly when an employee has been off work for a lengthy period can be tricky.

  • Less is more – restraints of trade

    Many people seem to believe restraints of trade aren’t “worth the paper they are written on.” However, that assumption is often completely wrong.

  • Employee requests for information in a restructure

    Last year, the Employment Court issued an important decision about the disclosure of information in a restructure (Vice-Chancellor of Massey v Wrigley & Kelly).

  • Get the answers: City port dispute makes employers anxious about strikes

    Industrial action in strikes and lock-outs has raised its head in the media recently. The most high profile dispute has been at the Ports of Auckland, causing many employers to consider whether their workplaces could be affected by industrial action too.

  • Testing, testing, 103 ...

    The test for a justified dismissal changed last year. As Bridget Smith explains, the Employment Court has now provided guidance on the change from ‘would’ to ‘could’, and what this means in practice.

  • L&E Global Chambers Honour

    The leading international legal research guide, Chambers Global 2012, has included L&E Global in its Spotlight Table of Global Employment Law Networks.

  • Escape the trials of trial periods…

    Are you likely to be employing new staff in 2012? And if so, are you considering employing staff on 90 day trial periods? The big advantage with a trial period clause is that it is meant to prevent employees from being able to bring unjustified dismissal claims if the employment is terminated within the first 90 days.

  • “Testing Testing 103”

    As some of you may recall, from 1 April 2011 the test for a justified dismissal changed from what a fair and reasonable employer would have done in all the circumstances, to what a fair and reasonable employer could have done in all the circumstances.

  • The cost of a day off

    The Government has called for submissions on a proposal to Monday-ise Anzac Day and Waitangi Day. At present those public holidays are observed on the day on which they fall. This means that where either or both of these public holidays fall on a weekend, the majority of employees (those who work Monday–Friday), are not entitled to the public holiday or payment for it.

  • Telling the truth and keeping secrets – where do employers draw the line?

    The issue of what to say in a reference hit the headlines recently in a case involving a negotiated exit between a teacher and a pre-school.

  • Show them the door, not the contents of your wallet...

    A common question from employers is what to do when they believe that termination of the employment relationship is the best outcome, but there isn’t the time or willingness to work through a time consuming performance management process?

  • The times, they are a changing…

    As 2010 drew to a close, we took the opportunity in our Christmas newsletter to update you on the proposed amendments to the Employment Relations Act 2000, which were set to take effect from 1 April 2011.

  • Employment law – change ahead in 2011

    The Government has now passed its amendments to the Employment Relations Act 2000 (the ERA) and the Holidays Act 2003. The majority of these changes will come into effect from 1 April 2011.

  • “You’re fired!” – 90 Day Trial Periods

    Donald Trump has made an interesting contribution to global culture. There is his unique hair style, his garish buildings, his rumoured aspirations to become President and, of course, his ‘reality’ TV show, The Apprentice.

  • What’s the Government up to?

    Traditionally, one of the first things a new National Government does is repeal employment laws introduced by Labour. However, it’s now more than one year since the election and nothing much has changed.

  • Wishing you a very Merry Christmas

    It’s hard to believe that this tumultuous and rather manic year is drawing to a close.

  • Call me loyal

    What Level Of Loyalty Can Employers Reasonably Expect From Staff?

  • Running your business during a strike

    When the Employment Relations Act was first introduced in 2000, one of the most controversial provisions was the so called “anti scab” section (section 97).

  • A harder line on safety

    Most employers are well aware of their obligations to keep their employees safe when at work. However, a recent decision of the High Court demonstrates that the Courts are taking an increasingly hard line over workplace accidents.

  • A “try before you buy” period?

    Most employers have traditionally viewed trial periods as having minimal value.

  • The ABCs of redundancy

    As the global economy toughens, many employers are having to consider ways to reduce their overheads. Inevitably redundancies are often part of this consideration. With this in mind, we thought it timely to revisit the main obligations on employers when making staff redundant.

  • What about my EPP?

    A recent case from the Employment Relations Authority (“Authority”) has also raised a new potential hurdle when restructuring – the implications of having no employee protection provision (“EPP”) in the employment agreement.

  • Future legislation under Labour

    The current Government has a number of other Bills and proposals that are currently in the pipeline or working their way through the Parliamentary system. Many of these have already been mentioned in our last newsletter (available at www.sbmlegal.co.nz). However, some of the newer initiatives recently introduced are also of real significance.

  • Keep your friends close and your enemies closer!

    There is an old adage that good leaders should keep their friends close and their enemies even closer. This is well illustrated in an important Court of Appeal decision involving a Mr Salt, who was based on a tiny but rather notorious rock in the Pacific Ocean, Pitcairn Island.

  • Law changes still in progress

    Most new governments find the lure of rewriting our employment laws impossible to resist. This election is no exception. Regardless of which parties emerge victorious after 8 November, more change is on the way.

  • The National Party’s Policy

    Unsurprisingly, a number of Labour’s initiatives are unlikely to survive if the National Party leads the next Government. National has made it clear it will not make sweeping changes to the Employment Relations Act. However, the changes it wishes to make are still significant.

Latest Newsletter

#25 Jul 2017 View previous editions »

Welcome to Employment@Work, our biannual series on developing areas of employment law and human resources. We aim to provide you with timely, relevant information, to assist with your decision making and human resources strategies.

If you would like more information on any of the topics raised in our newsletter or here on our website, please feel free to contact us. Meanwhile, if you would like access to our current newsletter, please click the cover image at left to download the PDF.

Please note all newsletters written before April 2008 were produced by Mackinnon & Associates.