Updated: Jun 24, 2019
Our weekly update on ER issues, changes and important updates:
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. Subsequently, the employer offered Ms Marshall employment to sell a new product being released. A written employment agreement was provided which contained a trial period clause. Ms Marshall claimed that the relationship had evolved into employment at an earlier stage prior to signing the employment agreement. Ms Marshall progressed this argument as the subsequent trial period would be invalid if she were deemed to be an employee during the previous engagement. However, applying the usual tests for determining the real nature of the relationship the Authority rejected that claim and found that Ms Marshall had been a contractor. That Ms Marshall had previously been a contractor had no impact on preventing the subsequent trial period from being valid.
See Marshall v Think Green Ltd  NZERA Auckland 276.
Item of Interest
New transport rule caters to meal breaks for bus drivers, 30 April 2019
The Beehive says Cabinet has agreed on a new land transport rule to assist councils, bus operators and unions in dealing with new rest and meal break entitlements, which come into effect on Monday, 6 May.
The new rule, which gives flexibility to bus operators when scheduling rest breaks for drivers, is intended as a temporary measure while operators adjust their schedules to implement the changes.
The parties involved have also agreed on a Memorandum of Understanding for wider reforms.
Reproduced by permission of Wolters Kluwer NZ