There’s a lot going on in employment law at the moment – here’s a heads up about a few other things that have happened or are in the pipeline:
Income Insurance Scheme
The Government (in conjunction with Business NZ and the Council of Trade Unions) has developed an income insurance scheme to provide financial protection for workers who lose their jobs because of redundancy or illness. It will not cover termination for any other reason (e.g. poor performance, serious misconduct or resignation).
The scheme is not yet in operation, however, the legislation that will enable it has been passed into law (the Income Insurance Scheme (Enabling Development) Act 2022). Further legislation will be required to put the scheme in place and, should it be established, the Scheme’s likely commencement date will be 2024. $60 million has been set aside in the Budget for ACC (which will administer the scheme) to carry out design work for it.
The Government’s proposal is that employees who are terminated due to redundancy or medical incapacity will receive six months’ pay at a rate of 80% of their regular income as well as a four-week notice period and a four week ‘bridging payment’.
The notice period and bridging payment will be paid by employers and the remainder is to be financed by compulsory levies on wages and salaries paid in equal proportions by employers and employees. Such levies are proposed to be universal (rather than an opt-in scheme) and both employers and employees are set to pay 1.39%.
The scheme will cover most workers, including fixed-term, seasonal and casual employees as well as some self-employed and contractors. It will be limited to New Zealand citizens and residents and will only start after a worker has made six months’ worth of levy contributions in the previous 18 months. The 80% rate for replacement income will apply up to a maximum income level, currently proposed to be $130,911 (gross) and the income cap will be adjusted annually.
Claimants who have been made redundant will be required to make appropriate efforts to obtain further work in order to be eligible for the scheme, and payments will cease when they fail to accept any job that matches their previous income and other terms and conditions. The scheme even proposes a 28-day grace period for travel overseas without affecting claimants’ entitlement.
We will keep you updated.
Increased protection for whistleblowers
New “whistleblower” legislation will come into effect on 1 July 2022 when the Protected Disclosures (Protection of Whistleblowers) Act 2022 repeals and replaces the current Protected Disclosures Act 2000.
The new Act is intended to make the legislation more accessible, to facilitate protected disclosures, and enhance protection for those who report serious wrongdoing in their workplace.
Key changes include extending the definition of “serious wrongdoing”, which will now include allegations relating to the misuse of public funds; the delivery of public services by the private sector; and behaviour that is a serious risk to the health and safety of any individual. It will also be easier to report serious wrongdoing directly to an appropriate authority at any time (currently this can occur in limited circumstances).
Further protections for whistleblowers will include the introduction of a new ground of personal grievance to cover the situation where an employer retaliates or threatens to retaliate against a disclosure, and making the victimisation of disclosers a breach of the Human Rights Act 1993.
Employers will need to consider updating their Whistleblower/Protected Disclosure policies in light of the new legislation.
If you require any further information or assistance in relation to this issue, please don’t hesitate to contact us.
Changes to the costs regime in the Employment Relations Authority
The Authority has recently issued a Practice Note stating that from 2 May 2022 the way it will approach awarding costs to the successful party has changed. The daily tariff approach (of $4500 for the first day of hearing and $3500 for subsequent days) will still apply to disputes including personal grievance claims and wage claims etc.
However a raft of other matters will not be subject to a daily tariff, and successful parties will be expected to bear their own costs. Those matters can broadly be categorised as cases that are disputes between unions and employers such as referrals for bargaining facilitation; disputes about the application, interpretation or operation of a collective agreement; pay equity processes; disputes about union access to workplaces; etc. Note that the Authority has an overriding discretion in any case to award costs as it sees fit, depending on the circumstances – the above is what will occur in most cases.
Possible change to timeframe to raise a Sexual Harassment Personal Grievance
A Private Member’s Bill is currently before a Select Committee, proposing to extend the time available to raise a personal grievance that involves allegations of sexual harassment to 12 months, rather than the 90 days that applies to other personal grievances.
Given the Bill has been put forward by a Labour MP, we expect it will become law, likely next year. We will keep you posted.