There have been recent amendments to 4 Employment related Acts, in addition to the introduction of the Criminal Records (Clean Slate) Act 2004 and therefore thought it worthwhile summarising these for you.
1) HOLIDAYS AMENDMENT ACT 2004
The amendment (Effective from 25 October 2004) clarifies the payments for working public holidays.
(Employees must be paid at least time and half).
-Employees must be paid for hours worked at the greater of:
- The employee’s relevant daily pay, less any penal rate, plus half that amount again; or
- The employee’s relevant daily pay (which includes all penal rates)
Penal rates include anything that is designed to compensate employees because they are working on a particular day e.g. Saturday, Sunday or Public Holiday. Penal rates do not include additional payments for working a 6th or 7th day or at particular times (overtime, shift allowance)
This means:
- The minimum time and half is not paid on top of any penal rates.
- Any penal rate of less than time and half will only need to be topped up to ensure the employee receives at least time and half for the day worked.
Where an employee is sick or bereaved on a Public Holiday that they were scheduled to work, the day is treated as an un-worked Public Holiday rather than sick or bereavement leave. The employee will get a paid day off but will not be entitled to time and half or an alternative holiday.
The amended Act now gives employers an opportunity to request a medical certificate from an employee within the three consecutive calendar days subject to:
- The employer has reasonable grounds to suspect that the leave is not genuine;
- The employer informs the employee of the requirement to provide the proof as soon as possible after forming the suspicion; and
- The employer agrees to meet the employee’s reasonable expenses in obtaining the proof.
2) PARENTAL LEAVE AND EMPLOYMENT PROTECTION ACT
New rights to paid parental leave came into effect on 1 December 2004.
The key changes are as follows:
Ÿ The period of employment for entitlement to parental leave (and payment) has now been reduced to: an average of 10 hours per week in the immediately preceding six months. (Was previously 12 months)
- There is an increase in the duration of parental leave payments for eligible employees from 12 to 13 weeks from 1 December 2004, extending to 14 weeks from 1 December 2005.
- One week unpaid paternity/partners leave for employees who have worked for the same employer for an average of 10 hours per week in the immediately preceding six months.
- Employees are not entitled to Parental Leave if it is less than 12 months since the end of a pervious period of Parental Leave for a previous child.
3) SMOKE-FREE ENVIRONMENTS AMENDMENT ACT 2004
As you will no doubt be aware from the recent publicity, the Smoke Free Environments Act has been amended (Effective from 10 December) and it is now unlawful to smoke anywhere within the workplace premises.
A workplace is an internal area within (or on) a:
- Building or structure occupied by the employer, usually frequented by employees or volunteers during the course of their employment; or
- Ship, an aircraft, or a train, owned, leased, or otherwise operated by an employer, usually frequented by employees or volunteers during the course of their employment.
It includes:
- Cafeterias, corridors, lifts, lobbies, stairwells, toilets, washrooms and other common areas associated with the workplace; and
- Internal areas in vehicles provided by the employer and normally used by employees or volunteers.
4) EMPLOYMENT RELATIONS AMENDMENT ACT (No 2) 2004
As there are a large number of changes (Effective from 1 December 2004) these are only in summarised form below.
Collective Bargaining
- Employers must not discourage employees from bargaining or be covered by a collective agreement.
- Bargaining deadlock over one issue shall not prohibit bargaining over other issues.
- Collective bargaining must result in a collective agreement unless there are genuine reasons not to conclude the agreement.
- Collective agreements may include recognition of the benefits of a collective agreement (e.g. additional payment or benefit to employees covered by the collective agreement.
- There is an option for unions/employers to agree to pass on the benefits of a collective agreement. This may include an agreement for the payment of a bargaining fee by the employees (this must have the employers agreement)
The Employment Relations Authority
In certain circumstances the Authority can now assist parties to resolve collective bargaining differences.
Duty of good faith
The duty of good faith has been broadened and includes ‘Responsiveness’ and ‘Communications’.
- Good faith applies equally to Collective and Individual Employment Agreement bargaining.
- The duty of good faith now also specifically includes business/employer decisions that are likely to have an adverse effect on the continuation of one or more employee’s employment.
Fair and reasonable action
Employers already have to ensure their reasons for an action or dismissal is fair and reasonable and that the process followed is fair. However the amendment to the Act now makes it clear that matters must be assessed on an objective basis.
Mediation
A new Mediation process will be available to provide speedy resolution where parties believe settlement can be achieved with limited external assistance and where parties agree to accept the Mediator’s decision.
Restructuring
New provisions specify that Employment Agreements must contain an employee protection provision that describes what steps the employer will take to protect employees in restructuring situations (Business sold / transferred or work contracted out)
Union Fees
Employers are now required to deduct union fees from the wages of union members who are on individual employment agreements and pay the fees to the union. (Subject to the employee’s agreement)
5) CRIMINAL RECORDS (Clean Slate) ACT 2004 (New Legislation)
This Act (Effective from 29 November 2004) effectively suppresses individuals criminal history where certain conditions are met:
- No convictions within the last 7 years.
- Never sentenced to a custodial sentence
- Never been ordered by a court, following a criminal case to be detained in a hospital due to a mental condition, instead of being sentenced.
- Not being convicted of a “specified Offence” (e.g. sexual offending against children)
- Fines, reparations, costs etc have been paid in full.
For employers, this means that an applicant/employee who meets the above criteria can legally state they have no criminal record. It will be an offence to require or request an individual to disclose their criminal record when they are lawfully entitled not to.
NOTE
The relevant legislative summaries (under the ‘Subscriber’ section of the website) will be updated over the Christmas Holiday period.
Consideration will need to be given to your company documents and agreements and whether these require updating as a result of the above legislative changes.
