Newsletter
Autumn 2005
In This Issue:
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Staff News
- We are all pleased to welcome back Claire O’Donnell from maternity leave.
- Maree Jones, Legal Executive in the conveyancing department, has left Turner Hopkins. We wish her all the best in her move to Wellsford.
- We are delighted to welcome Dee Payne, Legal Executive, to the team. Dee has had extensive experience in commercial and residential conveyancing, and will be a valuable asset to our team. Dee will replace Maree, and will start in late April. In the meantime, please direct all conveyancing enquiries to John Stirling.
- Many clients will know Jessie Green, who has ably assisted Lianne Jamieson for the last three years. Jessie has now left us to go on her “big OE”.
- Lisa Woodrow has now commenced work as Secretary/PA to Lianne. Lisa has previously “temped” for us, and we are pleased to welcome her as a full-time staff member.
Recent Amendments to Employment Law
Anecdotal evidence suggests that many employers have struggled to keep abreast of recent changes to employment law. If you are an employer, do you know that many of those changes have required amendments to individual employment agreements?
Key dates that need to be noted by employers are 1 April 2005 and 1 December 2005. Why?
The Holidays Act 2003
The ramifications of the Holidays Act have been widely discussed by the media and most employers will now be familiar with its provisions. The date by which all existing employment agreements must be amended in line with the Holidays Act was 1 April 2005.
Turner Hopkins advises those employers who have not yet taken steps to amend their employees’ agreements to contact us as a matter of urgency. The amendments required are not as onerous as they may seem. We are able to provide those amendments in a form which can be considered by employer and employee, signed by both parties,and simply affixed to the employee’s current agreement.
Employment Relations Act Amendments
Less well-known are the amendments to the Employment Relations Act, which came into force on 1 December last year.
The amendments aim to better support the key objectives of collective bargaining and good faith and provide effective processes for resolving relationship problems. They also aim to protect employees by the inclusion of an “employee protection clause” in individual employment agreements. This will become effective if the employee’s job is affected by the sale or transfer of their employer's business or if their work is contracted out.
Agreements must be amended to include these provisions by 1 December 2005 (or when the agreement is next amended, if before 1 December 2005).
However, if you are considering restructuring your business, please note that all existing employees’ agreements need to be amended prior to restructuring (which includes sale, transfer, or contracting out of the business).
How Do the Employment Relations Act Amendments Affect my Business?
The four main areas of change are summarised below:
- Duty of Good Faith – The meaning of this term has been widened and there is now a legislative requirement for good faith behaviour, withpenalties for failure to comply. Employers and employees need to be “active and constructive in establishing and maintaining a productive employment relationship”. This includes being “responsive and communicative”. There is a statutory requirement on an employer to consider any issues that employees (and prospective employees) raise in relation to bargaining for an individual agreement or any variation of one, and to respond to them.
- Employee Protection Provision – In situations where an employer’s business is being sold, transferred, or contracted out, employers are now required to follow a consultation process with employees in advance of the sale, transfer, or contracting out. In addition, employers must make arrangements with the purchaser of their business in relation to existing employees.
- Collective bargaining – it is now actively promoted rather than simply permitted.
- The processes for resolving employment relationship problems have been widened and now include:
- Dispute resolution services are now provided through the Department of Labour to independent contractors (independent contractors are not employees).
- Procedures that allow mediators to address any party to a matter without the representative of that party being present and to express their views to one or other party with or without their representative being present, on the substance and process of the matter.
- Allowing employers to pay awards made against them by way of instalment, if financial circumstances require it.
- Ensuring that any payment goes straight to the other party and not to their representative, unless their representative is a solicitor.
The employee protection clause is not required if the employees fall within the definition of ‘vulnerable employees’, namely those providing cleaning, food catering, caretaking or laundry services in specified sectors (i.e. schools, hospitals or residential care sectors, airports, public service). These types of employees have special protections set out in the Act in the event of a restructuring.
What do I need to Do?
It is most important for employers to note the dates by which these amendments should be included in individual employment agreements.
To assist employers in meeting their obligations, Turner Hopkins have prepared appropriate documentation to cover the provisions of both the Holidays Act and the amendments to the Employment Relations Act. The clauses can then be discussed between employer and employee, signed by both parties, and then annexed to the employee’s current agreement.
This will ensure that employers have complied with the requirements of the amended Employment Relations Act and the Holidays Act. We strongly urge that all employers obtain a copy of these clauses.
If you would like to discuss this, or any employment matter, please call Michael Robinson, Claire O’Donnell, or Helen Wendelborn of Turner Hopkins – we will be pleased to help.
Smokefree Law
The recent amendments to the Smokefree Environments Act 1990 have generated much discussion over recent months. Although the impression sometimes conveyed is that a new law has come into effect, the amendments to the 1990 Act were actually passed at the end of 2003 and provided for progressive changes over a two-year period.
The most significant are as follows:
- Imposition of a ban on access to smoking products for those aged under 18 years of age effective from 10 December 2003.
- Buildings and grounds of schools and early childhood centres became smokefree with effect from 1 January 2004.
- Licensed premises (including bars, restaurants, cafes, sports clubs and casinos) became smokefree indoors from 10 December 2004.
- All other work places became smokefree indoors from 10 December 2004.
- Restrictions on the display of tobacco products in retail outlets apply from 10 December 2004.
Implications for Retailers
There are a number of restrictions on retailers who sell tobacco products. These include:
- A prohibition on the promotion of the sale of tobacco products with other products.
- A prohibition on promotional schemes for the sale of tobacco products.
- Restrictions as to the manner in which tobacco products can be displayed.
- Appropriate signage warning of the dangers of tobacco use which must be displayed where tobacco products are sold within 200 metres of the point of sale.
- Strict marketing directives aimed at enforcing the prohibition on the sale of tobacco or herbal products to persons under the age of 18 years.
Sports Clubs
All clubs or sporting organisations which are licensed for the sale of alcohol must comply with the new smokefree law. In particular, such organisations should be aware of the following:
- The fact that the premises are not open to the general public does not mean that compliance with the Act is not required.
- A club must take "reasonably practical steps" to ensure that it complies with the Act. Failure to do so could result in a fine.
Although the Act does not define what "reasonably practical steps" are, the Ministry of Health have issued guidelines which include the formulation of smokefree policies, displaying appropriate signage and prohibiting the sale of tobacco products on the club’s premises. Further information can be obtained from the Ministry of Health.
Partially Covered Spaces
Partially covered spaces are also an area of some concern and confusion to bar, restaurant and club managers and owners. By way of a specific example, if an area has a marquee roof over existing permanent walls there is some uncertaintyas to whether this area is appropriate for allowing smoking. The legal question that must be asked is whether it is an “open area”. The law does allow smoking in open areas. The legislation describes open areas as anything that is not an “internal area”. Therefore the real question to be asked is, “What is an internal area?” The legislation defines “internal area” as the following:
In relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all the doors, windows and other closable openings are closed, is completely or substantially enclosed by:
- ceiling, roof or similar overhead surface;
- walls, sides, screens or other similar surfaces; and
- those openings.
Therefore in deciding the answer to this question will be dependent on how substantially closed the entire area is. Things to look at will include the permeability of the surrounding structures and the percentage open to the environment permanently. The Ministry of Health have indicated that they will be attempting to require anything more than 50% enclosed to be smoke-free. It would therefore be a cautious approach to ensure that any area with more than 50% coverage is deemed a non smoking area. We believe that ultimately this question will have to be decided through the courts. When this occurs it is most likely to have significant media coverage.
The underlying objective in making these changes is to protect the public from the harmful effects of smoking and to further promote a smokefree lifestyle as the norm. The changes to the law have not been welcomed by everybody, particularly some casinos, hotels and bars where employers and customers have voiced resentment at what they perceive as undue Government interference.
There are significant penalties whereby failure to comply can result in fines of up to $4,000 in respect of each offence for companies and up to $400 for each offence for individuals. As some licensees of licensed premises (particularly hotels) have stated their intention to flout the law by continuing to allow smoking on their premises, presumably it will not be long until we have an indication as to the penalties likely to be imposed by the Courts in practice.
Civil Union Legislation
Whether you joined in the “Enough is Enough” march on Parliament, or wanted to shoot the marchers, you probably have a view on the new civil union legislation. This legislation was passed into law in March 2005, incorporated in legislation known as “The Relationship (Statutory References) Act”.
The result of the legislation is that civil unions have been made legally equivalent to marriages. There is no distinction under the legislation between civil unions and marriage, meaning that people in both forms of those particular relationships will now receive virtually equal rights and responsibilities.
There is, however, no reference in the legislation to de facto relationships and previously mentioned references to de facto partners have been removed to preserve the separate identity of de facto relationships. The Relationship (Statutory References) Act is a prelude to the Civil Union Act which is due to come into force on 26 April 2005.
Once the Civil Union Act has been passed, we will be summarising the changes that this legislation will bring about and highlighting the areas that we believe may be of interest to our clients.
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Disclaimer
All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.
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