Workplace Watch - August 2024

Government’s reform agenda

Brooke van Velden used her first formal speech as Minister of Workplace Relations and Safety to outline her reform agenda for this term. Most of the policies come from the ACT Party manifesto but there was significant consensus in this area among the coalition partners – ACT and National, in particular.

In terms of the Employment Relations Act, the Minister has asked her officials for advice on policy options to:

• Simplify personal grievances, including setting a high-income threshold above which a personal grievance could not be pursued and removing eligibility for remedies if the employee is at fault, and
• Increase “certainty” in contracting relationships to prevent contractors from seeking employee status after they have been hired.

Speech, delivered to the Auckland Business Chamber on 12 March 2024

Holidays Act

The Government is seeking an early resolution to this longstanding legislative reform issue and is planning to have an exposure draft bill released for targeted consultation in September this year.

Those wishing to be part of this process can register their interest here.

Among the changes Minister van Velden is considering are:

• Pro-rating sick leave so that it becomes proportional to the number of hours worked, a change that would remove the ten-day minimum entitlement from part-time workers, and
• Moving annual leave from an entitlement system to an accrual system to avoid the complex calculations “that regularly stump payroll software”.

The Minister seems disinclined to pay much attention to the final report of the Holidays Act Taskforce which is now close to 5 years old
Minister’s press statement

“Modest” increase to minimum wage

The minimum wage was increased 2% to $23.15 an hour on 1 April this year, and the starting wage to $18.52. Workplace Relations and Safety Minister Brooke van Velden described the increases as “modest”.
Announcement

Uber appealing

Uber is seeking to have the Court of Appeal overturn the Employment Court’s 2022 decision that Uber drivers are employees rather than contractors.

Uber NZ general manager Emma Foley said the ruling had “created significant uncertainty for workers and businesses who rely on contracting arrangements".
Article

Paid parental leave increase

Paid parental leave increased at 1 July from $712.17 to $754.87 gross a week.
Statement

Member’s Bill to allow employees to disclose remuneration

A bill sponsored by Labour MP Camilla Belich to protect employees who disclose their remuneration to third parties will go to first reading, having passed the biscuit tin test (the lottery system for culling private members’ bills).

Currently employment contracts may include terms prohibiting disclosure, including to co-workers, breach of which can attract disciplinary action. The intention of the Bill is to foster greater transparency so that any pay discrimination can be identified and remedied.
Bill

Workplace trends

Four out of five businesses offered flexible working hours in 2023, according to Stats NZ.

Big changes coming for Health and Safety at Work Act

The Government has begun what Minister van Velden describes as a “substantial consultation on work health and safety”. The direction of change is clearly signalled in the issues identified for review.

• Whether health and safety requirements are too strict, or too ambiguous, to comply with.
• Difficulties caused by the overlap between work health and safety legislation and other requirements.
• The actions that businesses undertake, the reasons behind these actions, and their effectiveness. 
• Whether consequences for not complying with health and safety obligations are appropriately balanced and reasonable.
• Whether the threshold at which work-related risks need to be managed is under- or over-cautious.

Statement

Business group slams NZ’s health and safety performance

The Business Leaders’ Health & Safety Forum has slammed New Zealand’s apparent lack of commitment to workplace health and safety.

The forum released an analysis last year which estimated the societal costs of workplace related harm and illness in 2022 at $4.4b and said Australia’s fatality rate was roughly half of New Zealand’s and its serious injury rate was 20% lower.

It has now produced a new report, compiled by a taskforce of senior businesspeople, in which it calls for:

• The 2018-2028 Strategy to be refreshed and supported by a three-year action plan to be monitored by an independent group. Action planning should be “explicit, time-bound and measured, including health and safety improvement targets supported and informed by relevant data, and
• A focussed review by WorkSafe and the Ministry of Business, Innovation and Employment of relevant regulations, codes of practice and other forms of guidance. It considers that the Health and Safety at Work Act is fit for purpose.

Report

WorkSafe in serious trouble

The State of the Nation 2024 survey of WorkSafe’s performance, undertaken each year by Safeguard, has found a dramatic collapse in confidence.

Of the 533 people surveyed, only 16% felt WorkSafe was performing well, down from 34% last year. The sample is comprised of H&S practitioners, H&S representatives and business owners/senior executives.

The trend since the survey’s inception in 2020 is of continuous and accelerating decline in response to the statement “The H&S regulator WorkSafe NZ is performing well”. In 2020 54% agreed, dropping to 49.8% in 2021; 44.4% in 2022; 33.9% in 2023 and 16.3% in 2024.

See the Safeguard site for more detail. We were unable to access a publicly available copy of the report.

WorkSafe unveils new strategy

WorkSafe has reviewed its approach to its role, noting that although the rate of fatal work injuries in New Zealand has more than halved over the last 20 years, the rate of improvement has slowed over the last decade.

At the heart of its new strategy is a focus on where risk of acute or serious injury is greatest. Among the statistics it has chosen to highlight are:

• Approximately 55% of work-related fatalities and serious non-fatal accidents occur in four sectors – agriculture, forestry, construction and manufacturing
• The fatality rate in forestry and logging is nearly 20 times higher than the average across all other industries
• Vehicles are the primary cause of accident in at least half of workplace deaths, and
• The rate of serious non-fatal injuries is 30% higher on average for Māori than for non-Māori.

Strategy

Work-related suicides

A study of coronial reports between 2017 and 2021 has found that 197 (almost 12% of the total) were work-related. Men were much more likely to suicide than women – 162 to 35. The mean age was 45. The results are in line with other countries.
Report

Whakaari Island judgments

The final decisions are now in for the remaining five private sector parties in the Whakaari Island tragedy.

• Whakaari Management Ltd, owners of the island, have been fined $1,045m and ordered to pay $4,880m in reparations.
• White Island Tours have been fined $517,000 and ordered to pay $5m in reparations (their liability insurance will cover the reparations but, as they have not been trading in the three years since the eruption, they cannot afford the fine and are expected to go into liquidation).
• Volcanic Air Safaris was fined $506,000 and ordered to pay $330,000 in reparation (the company went into liquidation in 2022 so the fine is in the hands of the liquidator but is insured for the reparations).

• Aerius Limited was fined $290,000 and

• Kahu NZ Limited was fined $196,000.

Decision; article; article

Cost of bullying and harassment at work

A report commissioned from KPMG by the Human Rights Commission estimates the cost to employers of bullying and sexual and racial harassment at work in the June 2021 to 2022 year at $1.34b. The estimate is described as “conservative”.
Four categories of impact are costed:

• Absenteeism - $178m
• Presenteeism (being present at work but not performing at full capacity) - $369m
• Turnover and replacement of staff - $568m, and
• Internal complaints and other procedures - $226m.

Report

GNS fined $54,000 in separate proceedings

The Institute of Geological Nuclear Sciences (GNS), a Crown-owned company, has been fined $54,000 for failing to ensure that the helicopter pilots it contracted to transport its scientists to and from Whakaari were fully informed of all relevant qualitative risk assessment information.

The pilots were required to remain on the island while the field work was conducted to ensure that the scientists could leave at short notice should an emergency arise. The maximum fine available to the Court was $500,000.

Decision

Two courts confirm that directors may rely on competent H&S managers

Two recent Australian judgments – one in New South Wales, one in Queensland – have acquitted directors of due diligence failures on the basis that they had relied on information from competent health and safety managers.

In SafeWork NSW v Mitchell Doble, the sole director of a company was charged with failing to exercise due diligence after an employee was seriously injured when struck by a forklift carrying a heavy load. The District Court Judge found that the director “took an active interest” in ensuring safety issues were attended to by:

• Putting health and safety on the agenda at every management meeting
• Requiring regular reports from the H&S manager, and
• Reviewing whether any issues had been followed up.

The court accepted that to run a business there must be delegation and there was no reason for the director not to place confidence in the health and safety manager carrying out his duties.

The Queensland decision concerned the former managing director of a zip line business who had been charged with a failure of duty after the accidental death of a customer. The Magistrate in that case found that a director is not required to “micro-manage” every aspect of the business and can rely on senior employees with specific accountability for operational health and safety. It was their responsibility to develop H&S policies and procedures and there was nothing to indicate that the director’s reliance on them was misplaced.

Accredited Employer Worker Visa Scheme (AEWV) tightened

The AEWV scheme has been tightened to reduce migrant worker numbers. The suite of changes largely return the policy to pre-Covid settings and include:

• A minimum skills and work experience threshold across most roles;
• For levels four and five:
  • an English language requirement
  • approval by Work and Income for entry to the country, and
  • a maximum continuous stay limit of three years (from five);
• Disestablishment of the franchisee accreditation category.

Statement

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