Richard Stanley Rudman - NZ Employment Law Guide

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Product Information

About Wolters Kluwer

Wolters Kluwer enables legal, tax, finance, and healthcare professionals to be more effective and efficient. We provide information, software, and services that deliver vital insights, intelligent tools, and the guidance of subject-matter experts.

We create value by combining information, deep expertise, and technology to provide customers with solutions that improve their quality and effectiveness. Professionals turn to us when they need actionable information to better serve their clients.

Wolters Kluwer. When you have to be right.

Enquiries are welcome on 0800 500 224.

A catalogue record for this book is available from the National Library of New Zealand.

ISBN 978-1-77547-287-2 (eBook)

ISSN 2357-2264 (eBook)

2018 Richard Rudman

Published by CCH New Zealand Limited

First published October 2000

This edition published January 2019

All rights reserved. No part of this work covered by copyright may be reproduced or copied in any form or by any means (graphic, electronic or mechanical, including photocopying, recording, recording taping, or information retrieval systems) without the written permission of the publisher.

About the Author

Richard Rudman has worked in employment relations and human resources management for nearly 50 years as practitioner, consultant, and writer.

His books for Wolters Kluwer include:

• HR Manager: A New Zealand Handbook (2017) and
• Getting the Right People: Effective Recruitment and Selection Today (2010).

He is the author of the Wolters Kluwer online service New Zealand Workforce Manager.

This is the 18th edition of the annual New Zealand Employment Law Guide.

Richard Rudmans other books include Human Resources Management in New Zealand (5th ed, Pearson Education, Auckland, 2010) and Performance Planning and Review: Making Employee Appraisals Work (2nd ed, Allen & Unwin, Sydney, 2003).

He is a Distinguished Fellow of the Human Resources Institute of New Zealand, and a graduate of the University of Auckland and Victoria University of Wellington.

Publishers Acknowledgments

We wish to thank the following who contributed to and supported this publication:

Head of Content: Andrew Campbell

Editor: Reshma Korah

Editorial Reviewer: Denise Henderson

Composition/Graphics Editor: Barbara Hodgson

Indexer: Carol Linthwaite

Cover Designer: Envisage Design

Introduction

Another busy year in employment law. In Parliament, 2018 saw the Government make changes to the Employment Relations Act not as many as the Labour Party promised in the 2017 election, but such are the realities of coalition government. Not as fearsome as some business groups claimed since the amendments mainly returned the law to its 2015 state. A Green Party initiative paid leave and flexible work for the victims of domestic violence sneaked in almost unnoticed; it might well have more effect on workers and workplaces than the changes to the principal Act.

Parliament has yet to act on the big issues. The courts have said that some of our key legislation is out of tune with the times; that assumptions about 8-hour days and 5-day weeks do not fit modern working patterns, nor do traditional definitions of employee, worker and contractor suit todays more mobile and conditional working world. The questions posed by the Holidays Act review task force suggest a more open approach to larger scale change. Time will tell.

In the tribunals, a strengthened Labour Inspectorate brought new focus to the enforcement of minimum employment standards and both the Employment Relations Authority and the Employment Court dealt out appropriately harsh treatment to employers who ignored, or deliberately breached, the law. Not for the first time, the exploitation of vulnerable and immigrant workers was a constant theme.

Inevitably, change will continue. Employers and workers and all others who are interested or involved in employment relations might wish for more stable legislation; they would certainly wish for more easily accessible and navigable legislation.

In the meantime, the 2019 edition of the New Zealand Employment Law Guide should help them find their way around. But it can only ever be a source of general information and guidance. Be sure to seek appropriate professional advice for particular situations.

The law used in this edition was current at 1 January 2019. As far as possible, changes due to take effect in 2019 have been incorporated in the text. In addition, statute law in practice is illustrated by cases from the Authority and the Court, including determinations and judgments from 2018.

Richard Rudman

10 January 2019

EMPLOYMENT LAW AND THE WORKPLACE

1.1 ROLE OF EMPLOYMENT LAW

Employment law is the body of law that governs employment relationships and the workplace. It affects most people and organisations not only employers, employees and unions. Its most important role is to regulate relationships between employers and employees determining who may be employed, how they should be engaged, their minimum employment terms and working conditions, the duties they owe and are owed, and how the employment relationship can end. It determines the status and rights of unions, and sets the rules for collective bargaining.

However, employment law reaches far beyond the core employment relationship. Health and safety law, for example, covers all workers not just employees as well as people who enter a workplace as customers or suppliers or provide workplace machinery or equipment. Many of the statutes described in this book apply not just in the workplace, but also in other areas of our lives.

Four main functions

• 1. Employment law is the legal framework for the employer-employee relationship. Every employment agreement is governed by the Employment Relations Act 2000 and every employer and every employee regardless of level or union membership comes within the Acts scope. Every aspect of the employment relationship is affected by employment law.
• 2. Employment law gives employees the right to organise and bargain collectively. Unions are given rights and privileges by the Employment Relations Act, and only unions registered under the Act may engage in collective bargaining on behalf of their members.
• 3. Employment law sets minimum entitlements. Minimum entitlements are set by legislation or regulation and apply to every employment relationship. Employees may accept better terms and conditions, but may not agree to lesser terms and conditions or contract out of their minimum legislative entitlements.
• 4. Employment law regulates workplace standards and conditions. Acts and other statutory instruments regulate working conditions and workplace standards. The Health and Safety at Work Act 2015 is the most prominent example.

1.2 SOURCES OF EMPLOYMENT LAW

Acts of Parliament are the primary source of employment law. The Employment Relations Act, the Health and Safety at Work Act and the Holidays Act 2003 may be the best-known employment statutes but there are many more. The features of key Acts are summarised later (see ).

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