Employment Update – Week 1, May

Updated: Jun 24, 2019

Our weekly update on ER issues, changes and important updates:


Legislation

New infringement offence: failure to have written employment agreement, 27 April 2019

New regulations coming into effect on 6 May 2019 make it an offence for an employer to fail to comply with the requirement to have an employment agreement in writing (as is already required under s 65(1)(a) of the Employment Relations Act 2000).

The requirement for all employment relationships to be supported by a written employment agreement has been a legal requirement for many years. The failure to comply with this requirement can already render an employer liable to a penalty of up to $20,000. However, penalties can only be issued where an action is taken in the Employment Relations Authority or Court.

The new regulations make the failure to provide an employee with a written employment agreement also an infringement offence resulting in an infringement fee of $1,000. This means that a Labour Inspector will be able to issue an employer with an infringement fee for failure to comply with the requirement.

The Employment Relations (Infringement Offences) Regulations 2019 can be obtained at www.legislation.govt.nz.


Case of Interest

Contractor could subsequently be engaged on a trial period

The fact that a person previously worked for the employer as an independent contractor did not preclude the employer from subsequently employing the same person under a trial period as an employee. The Employment Relations Authority took no issue with the employee, Ms Marshall, having previously been an independent contractor. Rather the focus of the Authority’s inquiry was on whether in substance Ms Marshall had been a contractor for the entire pre-existing period, or if she had been an employee.

Ms Marshall had for a period of time performed pieces of work for the employer on an independent contractor basis, such as proof-reading product manuals, attending trade shows and training people on the use of the employer’s product. Subsequ