More "tweaks" to employment legislation on the cards

Thursday 28 February 2019

Authors: Liz Coats and Sara Lomaloma

​​Expanding the powers of the Labour Inspectorate to include making determinations about an individual's employment status is one of a number of changes addressed by proposed employment legislation referred to Select Committee this week.

The Regulatory Systems (Workforce) Amendment Bill (No 2) (the Bill) contains amendments to several employment statutes. While the proposed changes are relatively minor, if enacted, they will provide "regulatory fixes" to parts of the legislation that are outdated and/or no longer fit for purpose.

Here are the proposed amendments that employers should be aware of:

Expansion to Labour Inspectorate powers

The Bill proposes changes to the Employment Relations Act 2000 (ERA) to expand the Labour Inspectorate's powers to include the authority to investigate whether a worker is an employee. These powers would also result in corresponding changes to the Labour Inspectorate's power to enter premises and interview people in order to determine a worker's employment status.

This amendment means that Labour Inspectors would have the power to classify a worker (who may have been treated as an independent contractor) as an employee, and then to require the employer to apply the relevant employment standards to that person. Previously, a determination from the Employment Relations Authority or Employment Court would have been required on the worker's employment status before the relevant employment law requirements applied.  ​

Maximum penalty for Holiday Act breaches clarified

The proposed amendment to the Holidays Act 2003 clarifies the maximum penalty that can be ordered against an employer for non-compliance with the Holidays Act. Specifically, the existing two tiers of penalties that currently apply to individuals and corporations in their capacity as an employer will now also apply to any person involved in such a breach (according to whether that person is an individual or a corporation). The amendment effectively replicates the penalty provisions in the ERA. In particular, it enables a Holidays Act penalty claim to also be brought against any third party involved in the breach. ​

Gap in primary carer eligibility closed

The Bill proposes amending the Parental Leave and Employment Protection Act 1987 to clarify that the spouse or partner of a child's biological mother can become the primary carer in situations where they have taken on the primary responsibility for the child's care and upbringing. This would ensure that in situations where the mother no longer is the primary carer due to illness, death or other reasons, the mother's spouse or partner will not be disqualified from becoming the primary carer, or receiving parental leave payments even if they have already taken partner's leave. ​

The Ministry of Business, Innovation and Employment has indicated that it hopes these changes will take effect within the year. The Bill is just another example of changes being made to the employment law landscape. ​

We will continue to keep you informed regarding the Bill's progress.

If you have any questions about these proposed amendments, please get in touch with the authors or your usual Bell Gully advisor. ​


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Liz Coats

    Partner Auckland
  • Tim Clarke

    Partner Auckland
  • Rachael Brown

    Partner Wellington
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  • Employment and workplace safety