Barrister and solicitor Nan Jensen, who has a special interest in disability law, has put together the below information on workplace law in New Zealand, which is guided by the Employment Relations Act 2000.
Good faith employment relations
The main object of the law is “To build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship”.
The guiding principle is the concept of ‘good faith employment relations’.
So what does this mean? The Act describes ‘implied mutual obligations of trust and confidence’, but says that good faith is more than that. It is about actively maintaining ‘a productive employment relationship’, and that the parties are ‘responsive and communicative’.
Types of employment
There are several types of employment – the three main ones are casual, permanent and fixed term.
- Casual – employee works on an as-needed basis. Holiday pay is paid with wages if work is irregular.
- Permanent – this can be part-time or full-time.
- Fixed term – employment for a fixed period, then the employment ends. There must be a genuine reason why it is fixed term, and the length of time must be specified.
What is and isn’t employment?
The following types of work are not employment:
- Independent contractor
- A person engaged in film production work as an actor, voice- over actor, stand-in, body double and more
- A person engaged in film production work in any other capacity.
Some minimum rights
There are a number of minimum rights that employees have.
- Annual leave – employees can ask in writing to cash in up to one week of annual holidays per year. Employers may not pressure employees to do this. You can be required to take annual holidays during a closedown period for the workplace, but must be given at least 14 days’ notice.
- Break entitlements – entitlement to rest and meal breaks, which allow reasonable time to refresh and take care of personal matters. No rules for how long these should be –bargaining about these should take place in good faith. Rest breaks should be paid by employer, but there is no requirement for employer to pay for meal breaks.
- Employment agreement (in writing) – this is a requirement. This may be an individual agreement or a collective one.
- Health and safety – employers must provide a safe workplace with proper training, supervision and equipment. Employees may refuse work likely to cause them serious harm. The new Health and Safety legislation (the Health and Safety at
- Work Act 2015) increases the penalties for situations where workplaces have not met these standards.
- Minimum wage – this is for over 16s only, unless training or starting out, then there is a starting out minimum wage rate. Trainees over 20 must be paid at least the training minimum wage rate.
- Public holidays – there is an entitlement to 11 public holidays off work with pay if these are days where the employee would normally work. If an employee works on a public holiday they are entitled to time-and-a-half-pay. If it is a day they would normally work, then they are also entitled to an alternative paid holiday.
- Right to request flexible work arrangements.
- Equal pay and equal rights.
This must be in writing. If there is no written agreement, you are still protected by the Act but, of course, it is harder to prove what was agreed. You have the right to raise a personal grievance at any time, but there is no 90-day trial period.
- The following things must be included in an employment agreement:
- Place of work
- How to resolve problems
- Public holiday pay
- Arrangements in the event of restructuring.
90-day trial period
Employers can make an offer of employment that includes a trial period of up to 90 days. This must be agreed in writing, negotiated in good faith and must signed prior to starting work.
Trial periods are voluntary!
An employee dismissed before the end of a trial period can’t raise a personal grievance on the grounds of unjustified dismissal, but can raise a grievance on other grounds such as discrimination, harassment or unjustified action by the employer. The employee is entitled to all other minimum employment rights.
To disclose or not to disclose
The Human Rights Act 1993 prohibits discrimination in employment on the basis of disability, and the Employment Relations Act 2000 contains a duty to act in good faith.
So do you have a duty to disclose that you have a disability that may be hidden? This is a difficult question. On the one hand, there is no duty to disclose if the disability will not prevent you from carrying out the work satisfactorily. On the other hand, there is an obligation to act in good faith.
An employer should ensure applicants are aware of the requirements for the job. They may ask whether there are medical or physical conditions or disabilities that might prevent them from carrying out the work to a reasonable standard.
They may not ask questions that could indicate an intention to discriminate. If you have not answered truthfully then you can be dismissed – as you were not acting in good faith.
The Human Rights Act includes a concept called reasonable accommodation, which means that the workplace should make changes in order to ensure equal employment opportunities. The test is whether these changes can be made with minimal expense and disruption.
In general, if the best applicant for the job has a disability that requires modification to the workplace or work practices so that the person can perform the role, then the employer should make those modifications.
Minimum wage exemption
The Minimum Wage Act 1983 provides for an employer to be able to apply to a Labour Inspector for an exemption period if the employer and employee agree there is a good reason why the employee should be paid less than the minimum wage.
The Labour Inspector’s role is to ensure that the disability really stops you from earning the minimum wage that you have had someone with you to discuss wages with your employer, and your written employment agreement meets the minimum standards.
The Labour Inspector will issue the exemption permit if the situation meets all other requirements and they are sure that the wage is fair and that you agree to it.
Anecdotal evidence seems to imply that these exemptions are only given for ‘sheltered workshops’ (workplaces that exist to employ disabled people) and not in individual cases, although this is not how the exemption is described in law.
Solving employment problems
If there is a problem, both parties must try to resolve the issue in good faith.
If that does not work, the employee can raise a personal grievance. This will go to mediation through the Ministry of Business, Innovation and Employment.
If mediation doesn’t get a resolution, you can apply to the Employment Relations Authority for an investigative hearing where the authority member will make a determination.
An appeal can be made to the Employment Court – appeals can be made only on points of law or errors of fact.
The Human Rights Commission deals with issues of discrimination.
This article first appeared in the Altogether Autism Journal, Issue 2, 2016.