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The Government has recently introduced the following employment related Bills, covering meal and rest breaks, breastfeeding in the workplace, transfer of public holidays, and ACC:
- The Employment Relations (Breaks and Infant Feeding) Amendment Bill;
- Holidays (Transfer of Public Holidays) Amendment Bill;
- The Injury Prevention, Rehabilitation, and Compensation (No 2) Bill.
Last week the Government also announced it will be amending the Employment Relations Act (ERA) in 2008 to give greater protection to casual and fixed term workers.
There is also currently a Ministerial Advisory Group tasked with reviewing our current redundancy laws and whether legislative intervention is recommended here.
We discuss all five of these Government proposals below.
Employment Relations (Breaks and Infant Feeding) Amendment Bill
Currently, there is no explicit statutory requirement that employers provide employees with rest or meal breaks, although most employers already allow reasonable breaks. This Bill requires employers to provide the following minimum rest and meal breaks for all employees, and where reasonably practicable, to provide appropriate facilities and breaks for employees who wish to breastfeed in the workplace:
An employee will be entitled to the following paid rest breaks and unpaid meal breaks
- one 10 minute rest break where an employee works 4 hours or less;
- one 10 minute rest break and one 30 minute meal break where an employee works between 4 to 6 hours;
- two 10 minute rest breaks, and one 30 minute meal break where an employee works between 6 to 8 hours; and
- on the eighth hour of work, the entitlements start again.
Observing rest and meal breaks
- Rest and meal breaks are to be taken, so far as reasonable and practicable, at certain defined times. There is however, no guidance provided in the Bill for determining what is 'reasonable and practicable'. An employer and employee are free to agree to observe rest and meal breaks outside the specified timeframes.
- The Bill omits any reference to the employee having to work for a minimum period of time before the entitlements will apply. This may mean that an employee will be entitled to one 10 minute break no matter how short the period of work is.
Infant feeding breaks
- An employer must ensure, as far as reasonably practicable in the "circumstances", that appropriate facilities and breaks are provided for an employee who wishes to breastfeed or express milk at work.
- The "circumstances" include the operational environment and resources of an employer, and appear to be aimed at the ability of an employer to provide appropriate facilities for breastfeeding. Therefore, the obligations on a small employer could be different to those required of a large employer.
- Unless otherwise agreed between the parties, the breastfeeding breaks are in addition to the entitlement to rest and meal breaks.
- The Minister is to approve a code of employment practice as soon as practicable after the commencement of the Act, to provide guidance to employers on how to fulfil their obligations under the legislation.
Enforcing the breaks
- Failure to comply with the obligations may expose an employer to a penalty not exceeding $10,000 for a corporation, and $5,000 for an individual. The Employment Relations Authority may also issue a compliance order.
The Bill is now awaiting a report from the Transport and Industrial Relations Select Committee, due 22 July 2008. The National Party has stated that at this stage it will cautiously support the Bill. The proposed changes are intended to come into force six months after the Bill is enacted.
Holidays (Transfer of Public Holidays) Amendment Bill
This Bill allows for a public holiday to be transferred in certain, very defined, circumstances.
Where a public holiday falls on one or both days of a particular shift, the employer and employee may agree in writing that part of one or both days is not to be treated as the public holiday. Rather, the public holiday may be transferred to a 24 hour period that may either begin or end on the original public holiday.
An agreement to this effect cannot diminish an employee's entitlement to paid holidays under the Act in any given year.
The Bill does not allow the parties to agree to the transfer of a public holiday for reasons of cultural or personal significance, or for reasons of convenience.
The Bill is currently awaiting a report back from the Transport and Industrial Relations Select Committee, due 22 July 2008. The proposed amendments are intended to come into force the day after the Bill is enacted.
Injury Prevention, Rehabilitation, and Compensation (No 2) Bill
The ACC scheme is to be amended under this Bill, to cover work-related mental injuries caused by a single sudden traumatic event.
New: work-related mental injury
To be covered, the employee must directly experience, see or hear the event. Therefore, this will include an employee who witnesses, or is in close physical proximity to, the event.
The mental injury experienced by the employee must be the result of an event that could reasonably be expected to cause a mental injury to people generally. Normal distress suffered as a result of a traumatic experience will not be covered.
The Bill will not cover the gradual onset of stress that may be a result of work place conditions, for example, workplace bullying.
Therefore, the Bill will cover a mental injury arising, for example, where an employee is involved in a work-related serious car accident, or encounters a traumatic scene, such as an industrial accident or armed robbery at their place of work.
Extended: work-related personal injury
A further twenty-six diseases are added to the meaning of 'personal injury' by a work-related gradual process, disease or infection. For example, now included are specific types of occupational dermatitis and asthma, sino-nasal carcinoma resulting from working with wood dust, and chronic renal failure caused by metals.
The Bill clarifies that the responsibility, and costs incurred with investigating a claim, rests with ACC.
Moving forward
The National Party had opposed the increased costs on employers that would result from these amendments to the ACC scheme.
The Bill is likely to come into force on 1 October 2008.
Restructuring and Redundancy Issues Ministerial Advisory Group
The Ministerial Advisory Group on Restructuring and Redundancy Issues was expected to deliver its recommendations to the Minister of Labour by 30 June 2008. The Group is examining the adequacy of the current redundancy laws and provisions. In particular, the Group has been tasked to make recommendations about consultation and notice requirements, consultation to avoid mass redundancies, and a statutory requirement for redundancy compensation or other entitlements.
ERA Amendments for Triangular Employment Relationships and Temporary Workers
The Government announced on 22 June 2008 that it plans to amend the ERA to strengthen the rights of employees who are in 'triangular employment relationships'. This arises where an employee works under the control and direction of a third party (usually a customer or client of their employer). The proposed changes would allow the employer or employee to 'join' the third party (the secondary employer) to any personal grievance proceedings. They would also provide employees working under the control and direction of a third party with the same pay and benefits that apply to the actual employees of the third party who perform the same or similar work.
The Government also proposes to amend the ERA to provide greater protections for casual and temporary workers. In particular, Labour Inspectors would have the power to determine whether an employee is a casual worker, or a permanent one. The Department of Labour would develop a Code of Employment Practice for Casual and Non-Standard Employment, to assist employers and employees to clarify their relationships, and to understand their obligations.
These proposals are likely to be of significant concern to employers who hire reasonable numbers of casuals or fixed term workers. We will keep you updated on these legislative proposals, and when there will be an opportunity for submissions to Select Committee.
Reminder: Flexible Working Arrangements
In our November 2007 FYI, we outlined the amendments to the ERA, which will introduce flexible working arrangements provisions. This is a reminder that these amendments came into force on 1 July 2008 and provide eligible employees with the right to request from their employer more flexible working arrangements, to enable them to care for any person.
This newsletter is produced by Simpson Grierson. It is intended to provide general information in summary form. The contents do not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
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