COMMENT
A recent flurry of activity from government has seen discussion on amendments to employment related legislation including the proposal to incorporate specific meal breaks into legislation (no legal requirement to provide meal and tea breaks at present) and the Minimum Wage and Remuneration Amendment Bill which if passed will provide for a minimum rate, equivalent to the minimum wage, to be extended and applied to payments for contract of services.
In this newsletter we draw your attention to updates to the Employment Relations Act (Employment Relations Flexible Working Arrangements Act 2007) and the Parental Leave and Employment Protection Act 1987 which both take effect from 1 July 2008.
EMPLOYMENT RELATIONS (Flexible working arrangements) AMENDMENT ACT 2007
The amendment to the ER Act comes into force on 1 July 2008 and provides a statutory right for employees who meet specific criteria to request a variation of certain terms and conditions of their working arrangements because they provide care for any person.
A. Employees making a request
Employees who have responsibility for the care of another person and who have been employed by the employer for the preceding 6 months may make a request to vary their: hours of work, days of work, and/or their place of work (e.g. at home or at employers place of work).
The request by the employee must be in writing and must:
- State the employee’s name
- State the date on which the request is made,
- State that the request is made under Part 6AA of the ER Act,
- Specify the variation requested and whether it is permanent or for a certain period of time,
- Specify the date the employee proposes the variation to take effect, and if for a period of time, the date on which the variation is to end,
- Explain in the employees view, how the variation will enable the employee to provide better care for the person concerned,
- Explain, in the employee’s view, what changes, if any the employer may need to make to the employer’s arrangements if the employee’s request is approved.
An employee is not entitled to make another subsequent request until at least 12 months after the date of the previous request irrespective whether the previous request was approved or refused.
B. Employers responding to a request
Following receipt of a request from an employee, the employer must:
- Deal with the request as soon as possible, but no later than 3 months after receiving it
- Notify the employee whether the request has been approved or refused,
- That if refused, must notify the employee the request is refused because the employee is not eligible because either;
- The employee has served less than 6 months and/or less than 12 months since the previous request, and/or
- There are grounds for refusal.
- If the request is refused because of a ground specified below, the employer must also notify the employee of the ground for refusal and provide an explanation of the reason for that ground.
The grounds for refusal by an employer are:
- The employee is not eligible to make a request (length of service/less than 12 months since the previous request or,
- The request cannot be accommodated on 1 or more of the following specified grounds.
- An inability to reorganise work among existing staff
- An inability to recruit additional staff
- A detrimental impact on quality
- A detrimental impact on performance
- Insufficient work during periods the employee proposes to work
- Planned structural changes (re-organisation of department/company)
- The burden of additional costs
- A detrimental effect on the ability to meet customer demand.
C. Challenging an Employer
Employees may not challenge the employer’s refusal of a request, or their failure to respond to the employees request except if the employee believes the employer has not complied with the section relating to the requirement for the employer to formally respond.
D. Penalty
Employers are liable to a penalty of $2,000 if they do not comply with section 69AAE (section B. Employers responding to a request above) and this penalty payment is payable to the employee.
PARENTAL LEAVE AND EMPLOYMENT PROTECTION ACT 1987
There has been an adjustment to the maximum rate of parental leave payment payable to employees on parental leave (claimed by the employee via the IRD- not paid by the employer) As from 1 July 2008 the maximum amount is now $407.36 per week.
