Chapman Tripp | Workplace Watch

Workplace Watch is an occasional publication tracking legislative, regulatory, policy and enforcement developments in employment, health and safety and immigration.

In this edition, we provide an overview of the Government's recent initiatives to streamline labour market regulations and health and safety protocols.

Key legislative changes include:

the removal of the 30-day rule for new employee agreements
adjustments to the personal grievance regime
a reduction in pay equity rights
the reintroduction of pay deductions for partial strikes
the criminalisation of wage theft by employers

Suite of changes to reduce labour market regulation

The Government is focused on reducing labour market regulation across a number of areas this year. We are expecting Bills to be introduced to Parliament in the coming months that will:

remove the 30-day rule which currently requires that, where there is a collective agreement in place, new employee employment agreements must reflect the collective terms for the first 30 days of employment
remove the requirement on employers to provide the ‘active choice’ form and to pass on to new hires any union-supplied information on the role and functions of unions, and
reduce access to the personal grievance (PG) regime, by:
- removing all PG remedies for employees whose behaviour amounts to serious misconduct
- removing eligibility for reinstatement or compensation for hurt and humiliation when the employee’s behaviour has contributed to the issue
- requiring the Employment Relations Authority (ERA) and the Employment Court to consider whether the employee’s conduct obstructed the employer’s ability to meet their fair and reasonable obligations
- increasing the threshold for procedural error in cases where the employer’s actions against the employee are considered fair, and
- denying access to the PG procedure for unjustified dismissal to employees who earn a base salary of $180,000 a year or more, unless the employment contract negotiated between the parties specifically allows otherwise.

The $180,000 threshold will be adjusted annually to reflect changes in Statistics NZ’s average weekly earnings data and will be applied to existing employment agreements after a 12-month transition period - provided the employee remains with the same employer in the same role or is moved as part of a broader workplace restructure.

Statements of 29 November, 4 December and 12 February

Pay equity rights pared back

The Government has passed under urgency amendments to reduce entitlements under the Equal Pay Act. The changes:

raise the “predominantly performed by female employees” threshold to 70% of the relevant workforce (from 60%) and require that the inequity has been the case for at least 10 consecutive years
ensure there are reasonable grounds to believe the work is historically and currently undervalued, including a requirement for evidence
provide further guidance on the use of comparators – work performed by men that is different to the claimant’s work but has similar skills, responsibilities, levels of experience, or working conditions to the claimant’s work, and enable employers to meet their pay equity obligations in a way that is sustainable for their business – for example through phasing of settlements.

Current claims will be discontinued, although may be resubmitted if they come within the parameters of the new regime. Review clauses are no longer enforceable.

Minister van Velden said the changes would substantially reduce costs to the Crown and that the cost of settlements to date was $1.78b per year.

Statement

Back to square one on Holidays Act rewrite

Minister van Velden has instructed her officials to start from scratch in designing a new Holidays Act regime involving:

an hours-based accrual model for annual leave, and
consideration of whether a simpler core system could be developed if other models were available for more complex work arrangements.

The change of direction reflects the feedback from the stakeholder consultation the Ministry of Business, Innovation and Employment (MBIE) conducted in 2024 on an exposure draft Bill that was built largely on the policy work conducted under the previous Labour Government.

The Minister still hopes to have the legislation passed this term.

Minister’s statement

Pay deductions back for partial strikes

The Government introduced legislation in the run-up to Christmas to restore the ability for employers to dock the wages of employees who are engaged in partial strike action.

The employer will be able to either deduct 10% of the employee’s wages or reduce them by a sum proportionate to the disruption being caused. Employers will have to provide written notification of their intention but will not need to specify the amount to be deducted in the notice.

Minister’s statement

Wage theft by employer now a specific crime

The Crimes Act has been amended to create a new offence that will capture employers who unlawfully withhold wages, salaries, and other monetary entitlements within an employment relationship.

The change was made through a private member’s Bill that was supported by all parties in Parliament except National and Act.

The Bill

Another tiny nudge for the minimum wage

The minimum wage was increased to $23.50 from $23.15 on 1 April 2025 – a 1.5% increase.

Uber drivers win battle

Uber drivers won a second important battle when the Court of Appeal found unanimously that they are employees under the Employment Relations Act 2000.

Initially it seemed they might still lose the war because Minister van Velden announced within days of the court decision that she would legislate to settle the position in Uber’s favour. However, New Zealand First used its annual conference in October to signal that they may deny the legislation their support and therefore a majority.

FIRST Union representative Dennis Maga was invited to give a presentation on the matter and Winston Peters, when asked later by media whether he had any issues with the proposed legislation said “most definitely”.

Chapman Tripp’s commentary : article

Non-disclosure remuneration clauses on the way out?

The Employment Relations (Employee Remuneration Disclosure) Amendment Bill has passed its first reading and been referred to select committee.

The Bill, promoted by Labour MP Camilla Belich, would prohibit clauses in employment contracts prohibiting employees from discussing their wage or salary details with third parties.

Bill

Pay gap calculator

The Government has launched a pay gap calculator, posted to the Ministry for Women website.

Calculator

Swathe of changes to soften the H&S regime

The Government will legislate to specify that day-to-day health and safety (H&S) management will be the responsibility of managers, leaving directors free to focus on governance and strategic oversight.

The change was sought by the Institute of Directors following the conviction earlier this year of former Chief Executive of Ports of Auckland Tony Gibson for failing to exercise his due diligence obligations under the Health and Safety at Work Act 2015.

It is one of a series of reforms to reduce the liability risk arising to employers from their H&S obligations. Others include:

specifying that compliance by a business with an Approved Code of Practice (APOC) will be sufficient to meet that business's health and safety obligations
a proposed amendment to clarify that landowners will not be responsible if someone is injured on their land while doing recreational activities, and
a “suite of system-wide changes” to cut through “unnecessary red tape”.

See our commentaries on the Gibson decision are available here and here. Our commentary on the other changes is available here.

Minister seeks change of direction from WorkSafe

Minister van Velden has instructed the WorkSafe Board to “rebalance” WorkSafe’s effort away from enforcement and toward early engagement to assist businesses to manage their critical workplace risks.

The instruction was conveyed in a Letter of Expectations dated May 12 this year.

Group employer submission wants more supportive regime

A joint submission from 61 large employers to the van Velden review said a good health and safety culture led to better productivity and took pressure off the public health system but that the current Act was not as supportive as it needed to be.

They argued for changes across six fronts:

greater clarity of expectations for duty holders, through a mixture of regulation and guidance
clarification and simplification of overlapping duty responsibilities
enhanced regulatory practices and inspectorate competency
ongoing leadership, monitoring and system stewardship
establishment of a national data and insight hub, and
meaningful incentives for good H&S performance.

See the full submission here.

Weak H&S practice costs NZ almost $5b a year

Poor workplace health and safety is costing the country $4.9b a year, up from $4.4b in 2022, according to the Business Leaders’ Health and Safety Forum.

The forum’s 2024 State of a Thriving Nation report, commissioned from economist Shamubeel Eaqub, found that New Zealand’s workplace fatality rates are 60% higher than Australia’s despite similar legislative settings.

One reason for the difference may be better enforcement as a second finding was that the Australian WorkSafe equivalent has more inspectors, carries out more workplace visits, and issues more infringement and prohibition notices.

Read the report here.