Newsletter - April 2024
Blink and you will miss it…Easter has been and gone and we are now near the end of the fourth month in 2024. The colors of autumn are everywhere and the days are shorter, and getting a little cooler as we gradually move into winter. With many businesses working through financial year end, now is a good time to start planning ahead for the next 12 months and with tighter economic conditions out there, the more planning ahead you can do, the better.
This month our newsletter focuses on the changing landscape within employment law and provides some handy tips and advice on some pretty topical issues. As the economy continues to throw up challenges, more and more businesses are being faced with questions over staffing and resourcing needs, we have a few key areas you should consider, particularly if you are looking at any form of restructure.
We take a deep dive in to the ever-increasing proliferation of AI and its impact on the legal system with an article from one of our more tech-savvy Solicitors. Whilst AI is not new, its sudden increase in usage, across almost every aspect of life is creating a lot of noise and this is no different within the work we do.
Lastly our immigration team, provide some clarity on the recent changes to the Accredited Employer Work Visa (AEWV) scheme, which were rolled out earlier this month. With a tightening up on immigration settings, new compliance rules for employers and a higher bar to entry for applicants, we take a look at how these changes compare to previous Work Visa settings and their impact on employers and future applicants.
Employment Law News & Tips
With significant changes in the economy, and the labour market under strain, employment issues (and how to deal with them) are becoming increasingly common. Not only do uncertain times lead to uncertain employment situations, but many employers are also having to negotiate processes they might be very unfamiliar with. Our employment team have put together a few key topics for you to consider this month, covering restructuring and redundancies as well as keeping your employment documents up to date and the increase in workplace investigations.
Keep Up To Date
It is easy to let this stuff slip by, but having up to date employment documents and HR processes is key in challenging economic times.
Restructuring and redundancies
The past few years have impacted businesses in various sectors and very different ways. Our employment team is seeing a number of businesses seeking assistance with restructuring and redundancy processes to ensure proper legal process is followed - some time spent upfront can ensure that any process you need to go through is managed properly with minimal impacts on both the business and the impacted staff. The process will be different depending on the size and situation of the business so it pays to start with a detailed analysis of what your specific business needs might be. We offer advice specialized and tailored for your business needs, including template documents and letters for your business through each step in the process including:
Business case and genuine business reasons
Initial consultation
Meetings with potentially affected employees
Responding to employee feedback
Notifying of decisions and procedural steps
Parental leave legal test
Selection process criteria, communications and process (if applicable)
Redeployment
Termination for redundancy (if applicable)
If any restructuring or redundancy process is challenged, the business is required to show any redundancy is procedurally and substantively justified, otherwise it can be costly. Getting the details right from the start, and planning ahead can save you significant time and money, should any party decide to challenge the process at any stage.
Workplace investigations on the rise
We are seeing an increasing number of workplace investigations inquiries – how can a business ensure an investigation is conducted in accordance with the law?
This is becoming a technical area and businesses often find they do not have the in-house expertise or capacity to conduct an investigation, which can be time-consuming and further issues can arise during the process. Our team can assist your business in workplace investigations to ensure that a fair, independent and thorough investigatory process is followed:
Through providing advice to your business on the legal aspects of a workplace investigation and process; or
Acting as an independent external investigator, where it may not be appropriate to appoint an internal investigator. This may be for example where there are complaints regarding sensitive issues such as bullying, sexual harassment, discrimination, serious misconduct, or where there are credibility issues, or conflict issues or perceived bias.
Catherine Pendleton (Principal at Turner Hopkins) is a specialist employment lawyer and independent workplace investigator. She is a member of the ADLS Employment Law Committee and a Certificate Holder from the Association of Workplace Investigators (AWI-CH) in international best practice for investigations. Catherine understands investigations need to be conducted in a timely manner, and will clarify scope of the investigation, timeframes and cost with you at the outset.
Updating employment agreements
Life gets busy, so it can be very easy to forget that a lot of the documentation your business relies on to ensure your staffing needs are covered can quickly become outdated. The new financial year is also a good time for your business to review your employment agreements, practices and policies to ensure they are up to date with recent changes in employment law, including items such as:
90 day trial period clauses
12 month timeframe for raising a sexual harassment personal grievance
Minimum wage increase on 1 April 2024.
We recommend reviewing these documents regularly to ensure that they are up to date, your business is covered and your staff are engaged on the correct terms. Why not set a reminder every six months to review these documents and if you want some professional advice on whether your agreements or policies could do with an update, get in touch with our team for an initial discussion.
AI in the Legal Environment
AI & The Law
AI is everywhere, but how does the proliferation of this rapidly developing technology impact on the legal process?
The rise of Artificial Intelligence (‘Ai’) has sparked debates about its potential to replace human professionals in various sectors, including the legal service industry. While Ai presents exciting possibilities, it's essential to recognise its limitations. The human element in the legal service industry remains essential.
The Exciting Possibilities of Ai in Legal Practice
In November 2022, the release of Chat GPT took the world by storm. Now, 100 million people use generative Ai chat bots like Chat GPT every single month. As capabilities grow, Ai companies have started to develop industry specific technologies.
Ai leveraged solutions, such as VAIOT developed in collaboration with IBM, aim to revolutionize the legal sector. Their tools include:
Ai-driven virtual legal assistants for administrative tasks;
Smart contract drafting and execution on blockchain technology;
Secure data management with encryption and compliance features;
Integration with existing legal software systems.
Ai companies aim to streamline processes and enhance the solicitor-client experience, making legal advice more accessible and efficient. With technology driving down costs and improving efficiency, more people will have access to legal advice.
Limitations of Ai in Legal Practice – The Human Touch remains Essential
The potential benefits for Ai in law are undeniable. Nonetheless, Ai still lacks any possibility of eliminating the necessity for a lawyer. Here are some reasons why:
Interpretation of context and intention: Ai lacks the human intuition needed to interpret the unique context and intention of each legal agreement and/or dispute.
Ethical and moral considerations: Lawyers must navigate complex ethical dilemmas, while Ai, devoid of moral reasoning, may overlook these ethical considerations.
Adaptability and creativity: Legal disputes often require creative problem-solving. Ai excels within predefined parameters. On the other hand, human lawyers use their judgment to assess when a new solution is warranted.
Client relationships and empathy: Ai can enhance information and analysis but lacks the ability to empathise with clients' emotions and understand their individual circumstances. The last thing a client wants when faced with an urgent legal problem is to be speaking to a machine incapable of understanding their situation.
There is no doubt that Ai will radically change the legal service industry. While Ai undoubtedly offers valuable tools and resources to enhance the efficiency and effectiveness of legal services, it can never fully replace the intangible human elements including judgment, ethical considerations, and human empathy that define the essence of law.
Thank you to Avdo Mandal for preparing the above. Avdo follows the Ai space very carefully and will have more to post in due course.
Big Visa Changes
For the most part, the newly announced Work Visa changes are in line with the signals that this Government has been sending, having inherited the issues left behind by the former Government in late 2023, yet none of it is revolutionary and in fact apart from one or two items, most of what we have now, is policy we had prior to the AEWV, covered under the previous Essential Skills Work Visa program.
Work Visa Changes
After a rather scathing review, the AEWV system has been overhauled, although much of what we have been given are policies from days gone by.
That isn’t overly surprising, given change had to be made quickly to address the issues with the AEWV and its operations and the most efficient way to achieve that, without having to come up with anything new, was to simply roll back to policy that was tried and tested.
Summary of Changes
Below is a summary of the key changes that were introduced, across both the Work Visa scheme and also impacts on specific Residence pathways.
INZ has moved towards relying more heavily on the Australian New Zealand Standard Classification of Occupations (ANZSCO) to determine skill level, as opposed to simply using the median wage test. Roles at skill level 4 or 5 now have more stringent criteria. Roles at skill level 1 to 3 remain largely untouched in terms of the process.
ANZSCO will also play a more significant role in the job check stage, whereas previously it was only used “lightly”. Employers will need to be more careful when selecting ANZSCO codes that match the role on offer.
English language testing is being introduced for all skill level 4 and 5 roles, unless the applicant is exempt.
A minimum skill threshold has been introduced for all applicants - either three years of relevant work experience or a qualification at level 4 or higher. For all qualifications being claimed between level 4 and 6, an NZQA assessment will be required and the qualification needs to be relevant. For degree level qualifications, no NZQA required and the degree does not have to be relevant to the job offer.
AEWV’s for skill level 4 and 5 roles will now come with a two year visa, regardless of salary level with a further one year able to be applied for. After the three year total, applicants will have to leave New Zealand for 12 months or apply for a higher skill level AEWV.
Employers aiming to recruit for a skill level 4 and 5 role must engage with Work and Income as part of the labour market test requirement.
Employers must take reasonable steps to ensure the applicant is suitably qualified, notify INZ if an AEWV holder leaves their employment and put more effort in to demonstrating labour market shortages for lower skill level roles.
Advertising requirements for skill level 4 and 5 roles have been increased from 14 days to 21 days.
The 17 occupations slated to be added to the Green List in March of 2024 has been reduced down to a handful, leaving the majority off the list with no pathway to Residence.
In addition to the above, changes have been made to the Care Workforce and Transport Sector, Work to Residence pathways.
The Work to Residence pathway for the transport sector (bus and truck drivers) has been removed for applicants that are not yet working. Those on an AEWV already will still have that pathway available to them.
Clarifications have been added for claiming work experience for both of the above sectors and principally reinstating the $27.00 per hour experience claim between September 2021 and June 2022.
Of course within the 151 pages of policy updates there were plenty of other tweaks, including a greater focus on employer compliance and penalties, but the above changes are the most important in terms of general eligibility.
All in all, the changes are clearly targeted at lower skilled level roles, which has been the issue this Government has been grappling with. There have been an increasing number of Work Visa applicants coming to New Zealand to take up roles that carry little to no experience requirement and an increasing number of these have resulted in fraudulent applications. The English requirement will also knock out a large proportion of those applicants and employers who were gaming the system as a means to get a foot in the door to NZ.
That wraps up our news for April and as always our team are available to speak with you, if any of our articles might lead you to needing some good legal advice.
Before we go, we also have our usual monthly reminder that as things are getting tougher out there for many families, particularly as the weather changes, and as proud supporters of KidsCan, we would like to encourage anyone who can give a little, to donate online, to this amazing organisation. Every little bit helps, no matter how small.
Our May newsletter edition is already being worked on with further updates from our employment law team, some recent updates, hints and tips from our property team as well as an inspiring case study from our immigration specialists.
Stay safe, stay warm and stay tuned.
The Team - Turner Hopkins
