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Running your business during a strike

Section 97 places extensive restrictions on the ability of employers to call in replacement labour to do the work of the strikers. Essentially, employers can not employ or engage people principally to “perform the work of a striking or locked out employee”. However existing employees can voluntarily agree to do this work.

Section 97 has the potential to give a strike real “teeth” because if an employer cannot replace striking staff, then even if large numbers of employees are not on strike, the business may be unable to operate if the strikers are in key roles.

The Court of Appeal has recently issued an important judgment on section 97 which may increase its impact even further. In Finau v Southward Engineering Ltd, a strike in the workplace resulted in a coil slitter machine not being operated. The employer then instructed two non striking employees to operate the coil slitter. The two non striking employees were employed as “tube mill operators” but they occasionally worked on the coil slitter.

The non striking employees didn’t want to undertake the work performed by their striking colleagues and so refused to operate the coil slitter. The employer then suspended them saying they were now parties to the strike.

The issue in the Employment Court was whether the employees could be made to work on the coil slitter as part of their normal duties or whether their agreement was essential. The employees’ union argued that the issue should be decided on the basis that the replacement employees must have been scheduled to do “the particular task that, but for the strike, would have been done by a worker on strike at the time in question”.

The Employment Court found that this approach would “tilt [the] balance very much in favour of employees and unions engaged in a strike”. It held that the non striking worker could be instructed to undertake the work if it was “the type of work” which comes within the normal duties of the non striking employee.

However, the Court of Appeal disagreed with the Employment Court’s conclusion. The Court held that the work of a striking or locked out employee meant “the work a striking or locked out employee would probably have been performing had he or she not been striking or locked out”.

The Court of Appeal felt that both the employer and the non striking employee needed a test that provided clarity to them both and so posed the following question – “the parties faced with a strike, need to imagine what the strike affected part of the workplace would probably have looked like were the strike not taking place… This mental picture is not to be constructed on a snapshot basis or in painstaking details; the mental picture is more broad brush than that”.

The Court stated that what the parties need to focus on is what the striking employee would have been doing over the period of the strike. If the employer wants another employee to undertake that work and if that other employee would not have been asked to do such work but for the strike, then section 97 will apply. That will mean that other employee can lawfully refuse to do that work.

Contingency plans may need to be re-examined in light of this decision, as it may no longer be safe to assume you have the resources to cover striking staff.

  • The new coalition government has just completed its first 100 days and has already made several changes to employment law

  • Social media & interim reinstatement

    A recent Employment Relations Authority decision brings into sharp focus the role of social media in out‑of-work misconduct where it significantly impacts work colleagues.

  • Recent case has implications for collective bargaining

    In the recent highly publicised ERA decision, the Athletes’ Co-operative has been allowed to bargain collectively with High Performance Sport New Zealand, even though HPSNZ does not actually employ those athletes. This finding has potentially major implications for collective bargaining because it would mean that even if a union does not have any members in a particular workplace, it can still initiate bargaining for a collective agreement.

  • Fair pay agreements on the horizon

    The Fair Pay Agreements Bill was introduced into Parliament on 29 March 2022 and is currently continuing through parliament’s Select Committee process. The Bill provides a framework for bargaining for fair pay agreements (FPAs). It is expected to receive royal assent later this year and it will come into force one month after it does so.

  • Gloriavale Employment Court decision – a landmark case and what it means for other employers

    It is somewhat ironic that you would have to be living without access to media (as they do at Gloriavale) to have missed the outcry following the Employment Court’s decision in a case involving the Christian community in which three ex members were found to have been employees from the age of 6 until they left the community.

  • Some other things you should know about

    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.

  • Vaccination mandates – an update

    On 23 March 2022 the Prime Minister announced on behalf of the Government that vaccination mandates would be changing.

  • New Vaccination Assessment Tool Released

    In our update on 25 November 2021, we outlined some key issues for employers arising from the COVID-19 Response (Vaccinations) Legislation Act. This legislation set out the broad steps an employer was required to follow to implement a mandatory vaccination requirement, and consequential employment obligations.

  • Court of Appeal Decision in Gate Gourmet Case

    The Court of Appeal recently overturned the Employment Court’s decision in this case (Sandhu v Gate Gourmet [2021] NZCA 591).

  • Unvaxxed Airport Worker Gets Interim Reinstatement

    A recent decision of the Employment Court gave an employee interim reinstatement to their job when that employee was unvaccinated and likely subject to a government vaccination order. The case is WXN v Auckland International Airport Limited [2021] NZEmpC 205.

  • Holidays Act Decision on Discretionary Payments

    Helpful clarification from the Court of Appeal has been released on what amounts to a “discretionary payment” under the Holidays Act 2003, in Metropolitan Glass & Glazing Limited v Labour Inspector [2021] NZCA 560.

  • Traffic light system in place from today

    Freedom Day (of sorts) has arrived in Auckland after over 100 days in lockdown, and heralds the start of the Traffic Light System. This is the new COVID-19 Protection Framework, replacing the former COVID-19 Alert Level System.

  • Mandatory vaccination arrangements in workplaces

    Yesterday, Parliament passed into law the Covid-19 Response (Vaccinations) Legislation Bill, which is a significant piece of legislation concerning mandatory vaccinations, and has important employment law implications. Note that (despite how it has been described in some media reports) the legislation does not relate to the traffic light system – that has yet to be released.

  • Employment law and COVID-19 vaccinations

    As New Zealand grapples with community transmission of the delta variant of COVID-19, the resulting alert level restrictions and lockdowns, and the ramping up of vaccinations, we have been receiving a range of questions about the approach of employers to vaccinations and how these tie in with employment law obligations.

  • Payment of employees during lockdown

    As we navigate through our second Alert Level 4 lockdown, employers once again have been faced with the question of what changes, if any, they can make to employees’ pay, while they are faced with an inability to open their businesses in Levels 4 and 3, and employees are obliged by the government to stay at home.

  • Vaccination rollout likely to give rise to employment issues

    It is hard to believe it is almost a year ago New Zealand went into its first lockdown. However, with the COVID 19 vaccination rollout poised to be extended to all New Zealanders, we are on the cusp of a new phase in the fight against the virus.

  • Employment Court finds Uber driver not an employee

    The Employment Court recently decided an Uber driver was not an employee, in Arachchige v Rasier New Zealand Limited and Uber B.V. [2020] NZEmpC 230.

  • Continuing COVID 19 lockdown & pay issues

    In our October 2020 newsletter we highlighted two Employment Relations Authority decisions dealing with pay issues arising out of the March 2020 COVID 19 level 4 lockdown. The full Employment Court has recently released its decision in an appeal of one of those, Gate Gourmet New Zealand Limited v Sandhu [2020] NZEmpC 237.

  • An update on ordinary weekly pay and regular commission payments

    The Court of Appeal in Labour Inspector v Tourism Holdings Limited [2021] NZCA 1 has recently clarified the circumstances in which an employee’s incentive-based payments, such as commission, are included in calculations for ordinary weekly pay (“OWP”).

  • Reforming the Holidays Act

    The Government has just released the final report of the Holidays Act Taskforce. The report makes 28 recommendations for change and the Government has accepted them all, intending to introduce amendments to the Holidays Act in 2022.

  • Election 2020

    Employment law is a political football. It often swings one way or the other depending on which political party is in charge.

  • Level 4 lockdown: no work, no pay?

    Two recent decisions of the Employment Relations Authority have considered pay issues arising out of the COVID 19 level 4 lockdown. While both cases are being challenged in the Employment Court so the law is not yet settled, the Authority found both employers liable to pay their employees.

  • A new Privacy Act

    The long awaited Privacy Act 2020 will come into effect on 1 December 2020, replacing legislation on the books since 1993. This has long been considered outdated, because it never contemplated the explosion of technology since the 90s, nor the almost limitless ability of agencies to collect information.

  • What constitutes a disadvantage?

    A recent Employment Court decision may have extended the reach of what constitutes an unjustified action causing disadvantage to an employee. The case is Johnson v Chief of the New Zealand Defence Force [2019] NZEmpC 192.

  • Kathryn Beck appointed Employment Court Judge

    We are proud and delighted to announce that one of the founding partners of SBM Legal, Kathryn Beck, has been appointed a Judge of the Employment Court.

  • COVID-19 and restructuring processes – a reminder

    What a year it has been already with COVID-19 upending our lives, and the lockdown meaning incredible challenges for workplaces.

  • Contractor courier driver found to be employee

    The Employment Court has recently issued an important decision (Leota v Parcel Express Ltd) regarding a courier driver for Parcel Express Limited. This is the latest in a trend of cases dealing with individuals engaged on contracts as independent contractors but who are in fact employees.

  • Calculation of holiday pay – discretionary payments under the Holidays Act 2003

    The Full Employment Court recently considered the issue of what is a “discretionary payment” under the Holidays Act 2003. This issue is important for whether such payments should be taken into account for holiday pay calculations. The case is Metropolitan Glass & Glazing Ltd v Labour Inspector [2020] NZEmpC 39.

  • Triangular employment – new law

    From 27 June 2020, the Employment Relations Act 2000 will allow employees in a “triangular employment relationship” to bring personal grievances against the person who controls their work, as well as their employer. This law will particularly affect users of labour supplied by labour hire companies, and the labour hire companies themselves.

  • Changes at SBM Legal but business as usual

    At SBM Legal we have taken the next big step in our development as one of Australasia’s leading employment law specialists. Co-founding partner Don Mackinnon is stepping away from day-to-day involvement in the firm, to practise as a Barrister. The move reflects Don’s changing priorities, including a higher level of commitment to sports governance and a desire to focus more on project work such as investigations and bargaining. The firm will continue to retain a strong association with Don.

  • Triangular employment relationships

    A “triangular employment relationship” occurs when an employee of one employer works under the control of another person. When this happens, the identity of the real employer can become a little hazy.

  • Update on Fair Pay Agreements and Holidays Act Review

    Earlier this year we told you that the Government was progressing work on Fair Pay Agreements (“FPA’s”) and also on the Holidays Act 2003 review. We also told you that we would update you when there were further developments. There has been progress…of sorts…so here is our update as promised.

  • Holiday pay: what’s ordinary?

    Even though progress with the Holidays Act review is slow, the Employment Court has recently shed light on ordinary weekly pay (“OWP”) calculations for those who receive commission.

  • The tricky issue of redeployment in a restructuring process

    One of the more complicated issues that arises in a restructuring process is “redeployment”. this is essentially the obligation to consider whether an employee should still be employed (but in a different job) instead of being made redundant and losing their employment entirely.

  • Employment court adopts bands for compensation

    For many centuries, courts could not grant remedies for damage caused to intangible “feelings”. This is still a part of the ordinary civil law. However, employment law is relatively unusual because it allows an employee who has been treated unfairly to obtain a remedy if they have suffered “humiliation, loss of dignity, and injury to feelings”. When awarding compensation to address such damage, the courts provide monetary remedies.

  • Changes to employment law – an update on the state of play

    In our October newsletter, we reported on the progress of the Employment Relations Amendment Bill. We can now report that the bill was passed in parliament on 5 December 2018.

  • Strategies for surviving the silly season…

    Christmas comes but once a year. To make life easier and in the spirit of giving, we’ve set out below some tips for managing potential employment issues this festive season.

  • Employment Law Reforms – you can’t stop progress

    You need to ensure you are up to date with changes that may impact on your business; and we are committed to ensuring that you are. Set out below is an update on the Employment Relations Amendment Bill as it gets closer to becoming law.

  • The right to be paid for all hours worked

    A recent case from the Employment Court confirmed that employees should be paid for pre or post-work meetings if those meetings are an integral part of the employee’s work.

  • Government announces long awaited Holidays Act review

    A perpetual holiday for the Holidays Act 2003? That could be the outcome of a just announced review.

  • Fair pay agreements moving forward

    In the run up to the General Election in September 2017, the Labour party set out its proposed workplace relations policies, some of which it intended to implement within the first 100 days of being elected into office and some within 12 months of being in office. One of Labour’s policies was to introduce “fair pay agreements” (FPAs) that would “set fair, basic employment conditions across an industry.”

  • Employment law reforms announced – back to the future?

    We now have details of proposed changes to employment law. In some respects it is Back to the Future as a number of changes simply reverse changes by the last government. However, there are some significant changes to collective bargaining that are proposed, and more complicated issues like industry-based Fair Pay Agreements are still some time away.

  • Equal pay reform continues

    Hot on the heels of the government’s first tranche of employment law changes was its plan to reconvene the Joint Working Group on Pay Equity Principles (“JWG”). The JWG has now reported back to ministers.

  • Rap over knuckles for employer not dealing with employee representatives

    The Inland Revenue Department is in the midst of an enormous restructuring to the way that it records tax matters, and that is resulting in change processes happening for potentially thousands of employees who work at IRD – as well as litigation.

  • Costs and fees in the authority and “fast tracks” – getting bang for your buck

    Many personal grievances in the Employment Relations Authority or Employment Court aren’t worth that much money. That is especially when compared to the amounts involved in commercial litigation in the District Court or High Court. While the Authority and Court can hear very significant claims worth many millions of dollars, most of their work is concerned with personal grievances.

  • First sentences for breaches of new Health and Safety Law

    The Health and Safety at Work Act 2015 has been in force since 1 April 2016, but it hasn’t been until recently that cases have worked their way through the courts. However, it is clear that much higher penalties are going to be the norm from now on.

  • Update on Government progress in making Employment Law changes

    The new Government was sworn in on 26 October 2017 promising a number of changes to employment law.

  • Significant consequences for breaching a non-disparagement clause in a record of settlement

    Employment disputes happen. For some, litigation is required. For those that get resolved, parties can agree to a “full and final” record of settlement under the Employment Relations Act 2000. Once signed off by a mediator, that type of settlement is not only “full and final”, it cannot be cancelled.

  • Important decision on determining alternative holidays using “3 out of 4” rule

    Meatloaf said 2 out of 3 ain’t bad. But when it comes to determining alternative holidays, 3 out of 4 could be bad.

  • Labour hire workers and Uber drivers – are they employees and who employs them?

    The question of whether or not a person is an employee is a fundamental one.

  • What the election could mean…

    It’s election year and changes of government often bring changes to employment relations law. While employment relations law has been relatively stable in New Zealand in the 21st century, there is traditionally a stark divide between the employment law philosophies of our two main political parties.

  • Employment (Pay Equity and Equal Pay) Bill

    In April 2017, the draft Employment (Pay Equity and Equal Pay) Bill was released for consultation. The aim of the bill is to ensure that female dominated workforces are paid correctly and to address any imbalance created by historic and systemic gender based undervaluation.

  • Case law update

    The first Employment Court decision involving “availability” provisions has been released, in which McDonald’s Restaurants was successful in showing that its individual employment agreements complied with the law. The case is Fraser v McDonald’s Restaurants NZ Limited [2017] NZEmpC 95. Kathryn Beck and Tim Oldfield acted for McDonald’s.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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).

  • 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.

  • 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.

  • 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.

  • 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.

  • 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.

  • Changes to the ERA from 6 March

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

  • 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”.

  • 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.

  • 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”.

  • 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.

  • 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.

  • 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”.

  • 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.

  • 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.

  • 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.

  • 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.

  • 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’).

  • 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.

  • 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.

  • 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.

  • 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”!

  • 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.

  • 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.

  • 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.

  • 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.

  • Wishing you a very Merry Christmas

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

  • 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.

  • 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).

  • Call me loyal

    What Level Of Loyalty Can Employers Reasonably Expect From Staff?

  • 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.