These posts have featured in Phillip's monthly That Figures columns in the Star, Dunedin's community newspaper

Friday November 29th, 2013

These are the posts up until November - In future we will put them up once they have appeared in the Star to make them easier to find.


What should you do when you become aware of a problem at work?
Experience shows if you think there is something wrong, trust
your instincts, you may be right. This applies whether you are a manager or a staff member confronted with a problem.

What you then decide to do and how you go about it can have serious consequences. Your actions can be reviewed later. Your response must meet two key legal tests. These apply to all employment relationship problems that come under the Employment Relations Act 2000.

The tests apply to employer and employee alike. They are:
to always act toward each other in good faith which includes being open and communicative and raising problems early; and
to be fair and reasonable in responding to and making decisions about issues and problems in the workplace.

If you know someone who has come to you with a problem and you want to help, share by listening without judging and then talk it over together, confidentially.

This applies equally to management and staff. Help get the facts right and then decide how to deal with the problem and how to best go about raising it in an appropriate manner. Too often this is not done in a cautious and considered way.

Be careful what you say and who you say it to. It could be misinterpreted and misunderstandings can lead to time-consuming and expensive legal proceedings.

If no one around can help, put off immediately saying or doing anything. Talk it over with a person who is sensible and trustworthy. A partner or friend is great for support, but get proper advice if you need it.

Don't put things off and let problems get a life of their own.

More on Raising Problems


Last month I went over what to do if you feel there is a problem in the workplace. After getting your facts right and having a private talk with someone about what to do it is time to raise the matter.

Your right to raise the problem is recognised in law. Under the Employment Relations Act 2000 it is generally defined as an "employment relationship problem". This applies to issues both employees and employers may be concerned about and wish to raise with each other.

To raise a problem effectively first decide who best to approach. It is also very important how you go about it. Ask yourself if you are going to the right person. You need to bring the matter to the attention of someone who has the authority to deal with it.

In most cases staff should approach their immediate supervisor or manager. Sometimes it may be a complicated matter involving that person or you may not have made progress with them and need to escalate it to a higher authority in the organisation.

Check employment agreement wording about employment relationship problem processes. Also check any company handbooks or house rules, codes of conduct etc. that might set out the process to follow.

You should seek advice and are entitled to have a person accompany you to any meeting to provide support or advocate your case for you.
Specialist employment advice may be required to prepare for and run the meeting. This is strongly recommended for both employers and employees if the problem is of a serious nature such as work performance or disciplinary matters.

Both parties may arrange to have representatives present at such meetings, especially when personal grievances and legal disputes about employment rights are likely to be discussed.

There are some rules about raising such matters and the duty of good faith applies. Be clear before the meeting what the agenda is. Each party should be able to inform the other party in advance what they intend to discuss.


This month I am covering the information that should be kept to successfully discuss and settle problems in the workplace.

Barb (name changed) came to us with a problem. We needed to make sure she could refer to accurate records of past actions and events that occurred and any changes to her employment by Steve (name changed).

Here is a brief list of what every employer and employee should keep a record of. It's roughly in the order of when these come up:

1. job advertisement
2. job interview notes
3. letter of appointment
4. employment agreement
5. job description/person specification
6. house rules including any internal problem solving processes
7. dates of any agreed changes to terms and conditions of employment written or verbal
8. performance review/performance management documents
9. note or letters raising grievances or disciplinary issues performance or disciplinary warnings performance or disciplinary meeting minutes
12.resignation or termination letters

These records provide key facts about what was offered and agreed at the start of the employment relationship. If Barb and Steve didn’t have a shared record of what was agreed it's almost certain there might be trouble later. Here's why:

Under the Employment Relations Act, a copy of an intended employment agreement must be provided by an employer to any employee before starting the job. Steve risks a penalty of up to $10,000 for not doing so!

Numbers 4 to 6 on the list describe how the employment relationship has to operate in terms of expectations regarding behaviour, dealing with problems and monitoring work performance.

At work performance meetings or discussions, always take notes and date them. If there is a problem later both parties need to prove what communication took place and when.

The last four items (9 -12) on the list are about process. Record keeping when notifying grievances and disciplinary issues is essential. A grievance may escalate to the Employment Relations Authority or the Court where these processes will be reviewed for fairness and reasonableness.


Good Faith

This month I want to cover a technical term: Good faith.
It is very important term because all communication at work can be reviewed and tested against the good faith rules later. Especially when a problem or a dispute comes up.

Most people in dispute focus get caught up in the conflict that comes with raising a problem. It can get very heated with win at all costs attitudes taking over. However they treat each other, the good faith section of the ER Act will be applied. It requires that all parties to employment relationships:

"must not, whether directly or indirectly, do anything—
(i) to mislead or deceive each other; or
(ii) that is likely to mislead or deceive each other".

Good faith also:
"requires the parties to an employment relationship to be
active and constructive in establishing and maintaining
a productive employment relationship in which the parties
are, among other things, responsive and communicative."

The prohibition on misleading and deceiving is clear, it requires openness and truthfulness.

Responsive and communicative behaviour means not holding back information or intentions that might affect the other party.

There is a requirement to be open and prompt about providing information important to the other party.

This is especially the case where a problem arises because something on one party's mind has not been put to the other party for comment or explanation. This is a very common problem in disciplinary and dismissal cases where one party is not open with the other.

Untruthful replies by employees and a lack of openness from employers at disciplinary interviews are two examples regularly identified and punished in decisions of the Employment Relations Authority and the Court.

That is why accuracy and proper process are absolutely important.
Ambush or predetermination are not acceptable.


Access to advice and representation essential in the workplace

A couple of months ago I covered the need to keep written records about changes to work conditions.
It is also important to have the right people involved at the time important discussions and meetings take place.

Have the right people involved so they can be brought in to provide advice and representation and also relied on later to provide their recollections. This is especially important in meetings or discussions about five of the areas I referred to back in April:

1. dates of any agreed changes to terms and conditions of employment, written or verbal
2. performance review/performance management documents
3. note or letters raising grievances or disciplinary issues
4. work performance or disciplinary warnings
5. work performance or disciplinary meeting minutes

Under employment law rules it is a requirement that employers give employees advance notice of any meetings so they can arrange to have a representative present. There is also an obligation to inform the employee what the meeting is about to allow sufficient time to prepare for the meeting.

The next step is to prepare for the meeting.

All employees and employers have a right under the Employment Relations Act to appoint a representative. This should be an expert in industrial relations with some practical knowledge of the workplace and employment law. This is recommended if the meeting is going to cover 3,4 and 5 above.

A less formal approach can be taken by having a person accompany an employee to less serious meetings. This must be a person the employee has freely chosen, not the employer.

A witness is a person acceptable to both parties who is present when any of the matters on the list are being dealt with.

Making these arrangements for representation or support is important as it goes to whether an employer has been acting in a fair and reasonable manner.

This can be a very important issue if any issues arise out of decisions affecting these five areas causes problems later. This is often the case with concerns employers have about repeated work performance problems or employees not believing they have been dealt with fairly.

The best evidence of what happened is from the people present at the time and the notes they made at the time. Therefore it is very important to agree on record keeping and follow up correspondence to confirm what was agreed or decided.

Minutes of meetings and follow up letters should be checked and corrected if they don’t fully and accurately cover what was discussed and agreed. It is good practice for employers to give employees sufficient opportunity to check and confirm minutes. It is not good practice to demand they sign anything at the end of the meeting unless they have had sufficient time to check with their representative (if present) or seek advice.


Putting things off makes things worse!
Don’t procrastinate.

In recent months I have written about communication at work, especially when there are work performance problems or breakdowns in the relationship between employer and employee. Sometimes advisors and mediators get involved.

Rather than looking at who is at fault, employment advisors and mediators try to find out what has been going on.

The most direct and valuable assessment requires evaluating the communication employee and employer have had on any given employment problem. To do this, employment advisors and mediators take a special approach, following principles set down by those courts which deal with employment matters.

Each new ruling of the courts is applied to update interpretation of earlier rules.

The key test to be followed and applied reviews the conduct of the parties against the good faith requirements of the Employment Relations Act 2000.

The key definitions of good faith involve being open and communicative and not engaging in misleading and deceptive conduct.

The development of the obligations of good faith has resulted in rules for employers and employees to follow when they communicate with each other. What the Court keeps saying is timeliness is crucial.
This makes sense for a number of reasons on both sides of the employment relationship.

Employers cannot hold back and not raise problems and then unload them all at once at a later date. This is considered unfair and not in keeping with good faith. Such behaviour is most likely to be challenged by an employee taking a personal grievance.

In the same way, employees cannot hold back and not raise problems and expect to be taken seriously months later. Nor can they agree to and sign warnings or accept other changes to their conditions of employment without raising their objections clearly and promptly at the time.

The personal grievance procedure requires that any personal grievance for disadvantage or for unjustified dismissal must be raised with 90 days of the employee becoming aware of the problem.

Both employers and employees should realise good faith rules will also be applied to whether or not they have delayed. If delay does occur it is highly likely to raise questions about whether a party has been open and communicative with the other.


Don’t sign anything!

Workplace documentation is always about one party’s rights over the other involving power and money.

The best advice to both employers and employees is do not sign anything without taking advice. It is the legal requirement for individual employment agreements covering non-union staff. Employees should be allowed time to get advice before signing an agreement, especially in the case of trial periods.

Employees may be asked to sign new documents which are contentious. This is especially the case if the new document intends to change the terms of employment.

Caution is needed when employees are asked to sign a warning by their employer. If an employer is issuing a warning they are going to do it anyway.

What is the purpose of requiring the employee’s signature on the warning? Why would an employee ever agree to sign? Would signing mean the employee is agreeing to and accepting the warning? Does the signature mean he or she will not take a personal grievance? Or is the employee just confirming they have read and taken possession of a copy of the warning?

Hardly clear, is it?

These signing requirements are at best unclear and at worst intended to mislead and disempower workers and therefore should always be rejected.

Meeting minutes are similar. Every party to a meeting is entitled to stick to their view of what they said and what they heard and not be required to agree to or accept the record of another party.

When requests to sign minutes of disciplinary meetings and work performance meetings are made the employee always has the right to refuse to sign.

End of employment documents such as notices of termination, resignation and records of settlement should never be signed unless checked by an advisor. The person signing must understand what they are agreeing to and whether signing means they have settled all matters including disputes, claims and personal grievances. They may be signing an agreement to drop future claims.

Exit forms. - Filling out and signing exit forms should only ever be done if the employment has ended on a positive note. There is no legal requirement to complete them and it is unwise to fill one out if there is likely to be outstanding matters or issues arising from why the employment ended.

Appeal in Kiwisaver minimum wage case dismissed

Tuesday September 24th, 2013

The Court of Appeal has upheld last year’s Employment Court ruling that a rest home breached the law by deducting its employer Kiwisaver contribution from two minimum wage care givers.

In its decision the Employment Court had said the purpose of the Minimum
Wage Act(MWA) was to ensure workers received a base wage for their work to enable them to meet their daily living expenses for themselves and their family.

There was nothing to suggest it built in a component of saving for retirement.

The case,brought against TerraNova Homes & Care Ltd by the Service and Food Workers Union, showed the resthome had been deducting its 26c employer contribution to KiwiSaver from the women’s gross hourly pay, reducing it to $13.24 ( at the time of the court case the minimum hourly rate was $13.50 – it is now $13.75).

The court said because the employer contribution to Kiwisaver went to an outside provider rather than directly to the employee, the contribution did not constitute payment for work performed under the Act.

The gross wage, therefore, had to amount to the minimum wage plus the employer’s two percent contribution.

Terranova appealed against this ruling on three grounds, claiming

• the court erred in concluding the compulsory contributions were not wages
• the court erred in rejecting the argument that section 6 of the Minimum Wage Act could not limit Parliament’s authority to enact later contrary legislation
• the relevant provisions of the MWA and the AKASA read together entitled Terranova to make the decisions.

In its rejection of these arguments the Court of Appeal said it agreed with the Employment Court that the MWA was ‘’designed to impose a floor below which employers and employees cannot go’’ and that it was directed at preventing the exploitation of workers.

In a statement on the outcome of the case, TerraNova said it had acted quickly to advise
all of the relatively small group of its staff affected by the decision that
their pay-rates were being raised immediately to address this and that the
correction will be back-dated.

TerraNova chief executive and owner Terry Bell said: “This is a good decision though it does add just that little bit more financial pressure on us as a provider operating within the government-funded Aged Residential Care sector”.

He said given that most employees could be expected to join Kiwisaver, this ruling clarified the basic cost of employing a worker on the minimum wage of $13.75 per hour was in fact $14.17 per hour.
Elspeth McLean

Better pay for rest home workers.....closer to reality now?

Tuesday September 10th, 2013

Rest home caregivers will be carefully watching the next steps in the legal arguments over their pay after an Employment Court ruling last month.

At issue is whether the traditionally low pay of caregivers at rest homes breaches the Equal Pay Act 1972.

So far the full bench of the court has ruled the pay rate of the woman at the centre of the case, Kristine Bartlett, may be compared with other occupations which are not dominated by women to see if the company is breaching the Act.

Ms Bartlett, a Service and Food Workers Union member, is one of 110 caregivers (106 of them women) employed by Terranova Homes and Care Ltd. All are paid between the minimum wage of $13.75 and $15 an hour.

News reports have stated Ms Bartlett makes $14.44 an hour, after 20 years in the job.

The claim by the union is that the female caregivers are being paid a lower rate of pay than would be the case if caregiving of the aged were not so female dominated.

The substantive claims have not been heard at this stage, but the court ruled on a number of preliminary questions of principle and law for later application.

It ruled that Terranova did not have a complete defence to the claim if it alleged and proved it paid its four male caregivers the same rates as the 106 women and that it would pay additional or replacement males those rates.

If an employment agreement meant both females and males doing the same work were paid the same amount for the same work, this did not provide for equal pay under the Equal Pay Act if the rate of remuneration were affected by gender discrimination.

The court said it would be illogical to use a small percentage of men as a comparator group if they were paid less because they were undertaking ‘’women’s work’’.

At this stage it is not known what comparator occupations might be put before the court and argued over by the parties. The union has suggested they could include public hospital healthcare assistants paid $19.46 an hour after five years, psychiatric assistants in mental health facilities ($22) and prison guards (about $25).

Terranova argued that Parliament did not intend at the time it enacted the Equal Pay Act for the part relating to application of criteria, to determine whether there was differentiation based on gender, to have a broad meaning to it. It submitted it was predominantly aimed at preventing discrimination in industrial awards.

“Even if this is correct, an approach that asks solely what the original lawmakers intended can blind one to the function the Act ought to be performing today. Legislative fossilisation is undesirable, and that is particularly so in the context of employment relations which are dynamic, the subject of changing social attitudes and values, and ongoing development over time,’’ the court stated.

Since the passage of the Equal Pay Act there had been significant developments in human rights and society’s attitudes to discrimination. New Zealand had committed itself to a number of international obligations and the Bill of Rights Act had been enacted.

‘’Statutes are always speaking, and the Equal Pay Act is no exception, despite the fact that it has remained largely mute for the past 41 years. That is perhaps because no-one has initiated a conversation with it over that period.’’

The Court also said the expressed concerns relating to cost overlooked one important point ‘’ namely the unquantifiable cost ( including societal cost) of adopting an approach which may have the effect of perpetuating discrimination against a significant and vulnerable group in the community simply because they are women, doing what has been described as undervalued women’s work.

“History is redolent with examples of strongly voiced concerns about the implementation of anti-discrimination initiatives on the basis that they will spell financial and social ruin, but which prove to be misplaced or have been acceptable as the short term price of the longer term social good. The abolition of slavery is an old example, and the prohibition on discrimination in employment based on sex is both a recent and particularly apposite example.’’

Stirring stuff. I await the developments with interest.

This case is one of several the Service and Food Workers Union has in the pipeline.

*There is yet to be a ruling in the case which went before the Court of Appeal last month involving the issue of whether the employer (Terranova) could take out its 26c Kiwisaver employer contribution out of the pay of two caregivers on the minimum wage, then $13.50.

As I have reported before, late last year the Employment Court found the employer’s contributions had to be paid in addition to the women’s gross salary or wages.

*A decision is expected soon too on the sleepover case involving workers in school boarding houses.
In this case, before the Employment Court, the union, representing workers from Iona College (Hawkes Bay) and Woodford House (Havelock North), relied on principles established in the 2011 Court of Appeal ruling in the long-running case of disability support worker Phillip Dickson and Idea Services Ltd.

The court upheld earlier findings by the Employment Court that such support workers were working on sleepovers and should be paid at least the adult minimum wage for every hour of their shifts.

The boarding schools' case is the first one in which applicants have sought to apply the principles of the Idea Services case outside the residential disability sector.

At the outset the schools stated their main defence was workers were not conducting ''work'' as that word was used in the Minimum Wage Act.

- Elspeth McLean

All workers should be concerned about proposed Employment Relations Act amendments

Tuesday May 28th, 2013

Yet again, the state wants to impose more time-consuming and expensive legal processes upon both employers and unions.

The recently introduced Employment Relations Amendment Bill makes inroads into collective bargaining reminiscent of the pre-1987 arbitration system. There are two further areas where the bill will open up union/employer relations to third party capture.

Firstly, the Employment Relations Authority moves to the centre of collective bargaining, getting further powers to interfere with free collective bargaining and industrial action.

Secondly, the 63 amendments to the Employment Relations Act 2000 propose extensive alterations to current law.

This appears to be an unnecessarily elaborate make-work scheme for employment lawyers to open up and increase their involvement and influence in restricting collective bargaining.
The most significant changes for workers in unions involve partial pay deductions for partial strikes and the requirement for advanced written notice of the intention to strike or lockout and withdrawal of such notices in writing.

The partial pay deductions for partial strikes change is most likely to provide work for employment lawyers, some of whom were at the forefront of the call for these changes.
The process requires expensive legal proceedings in the Employment Relations Authority if unions are to challenge any deductions made by employers who choose to exercise new rights to deduct from wages. There are no rights for individual union members to recover partial pay deductions.

The right to deduct will also give employers a tactical weapon in collective bargaining. It is intended to have a chilling effect on union members’ willingness to take industrial action. Because union membership and collective bargaining is now concentrated primarily in the public sector cases are likely to involve well- funded public sector employers trying out the new restrictions.

The most significant change being proposed is the imposition of a requirement for unions to provide written notice of intention to strike and further written notice if they decide to withdraw the notice. This allows a period of time for employers to influence the work environment to avert the impact of all industrial action and to start making pay deductions. The reason for the change does not appear to relate to public interest requirements such as the strike notice requirements in essential services such as hospitals. Rather, its purpose appears to be to provide employers with an added burden to place on unions during collective bargaining.

At first glance, the Bill appears to be of no significance to the majority of workers who are not in unions and covered by collective agreements. ( In 2011 only 13 percent of the total employed labour force was covered by such agreements.)

But the amendments include repeal of the 30-day rule for new workers whose work is covered by a collective agreement to come under the collective when they start. It will enable employers to offer individual terms and conditions that are less than those in the collective agreement.

New workers will have to accept an individual employment agreement to get the job. This removes two important benefits of the law. The new workers lose the opportunity to start on the same rates of pay and conditions of employment as staff on the collective. Also, this will allow employers to engage new workers on a three month trial period under an individual employment agreement instead of starting on collective agreements that don't contain such trial clauses. Even if the employee later chooses to join the union and become covered by the collective agreement it will be too late, they will remain trapped on the three month trial period.

The changes appear driven by ideology and focused on further reducing union involvement in the workplace. Explanatory notes to the Bill claim it "... reduces unnecessary regulation." and it will be "...removing or amending unnecessary and burdensome requirements".

After wading through the 63 separate amendments over 40 pages of the bill, this statement is simply untrue. It is a regulating amendment bill. The underlying purpose is anti-collective. It aims to introduce further barriers to make collective bargaining an unattractive and litigious option for workers and employers. It will give employers further means to exclude unions and dominate negotiations at the workplace.

• This piece by Phillip appeared yesterday in the Otago Daily Times opinion page.

The back to the future approach to health and safety won't work

Thursday April 11th, 2013

There will be no improvement to workplace safety as a result of the proposed tinkering with New Zealand’s workplace health and safety system.

There are several reasons why failure is inevitable.
But first,some of the background.

Seven years ago Occupational Safety and Health (OSH) dissappeared into a multi-tier regional structure at the Department of Labour (DoL). The Government has moved to set up a separate health and safety agency once again. In the meantime DoL has been absorbed into the Ministry of Business, Innovation and Employment (MBIE).

The Government is acting on two initiatives from last year.
The first is the Pike River Royal Commission recommendation to set up a stand-alone health and safety agency.
The second is the Strategic Review of the Workplace Health and Safety system by an Independent Taskforce, set up in August 2012. It is expected to make recommendations in a report due this month.

Both initiatives are unlikely to improve health and safety for employees and other workers in workplaces.

Problems loom regarding the independence and staffing of the new agency.

The new agency will inherit problems in two key areas; management and staff morale.

A MBIE statement says the present MBIE Health and Safety Group
(which used to be within the Department of Labour) is "expected to provide a strong foundation for the new agency". This group ran the failed structure so severely criticised by the Royal Commission.

As for staffing the new agency, the MBIE statement says "It is expected that staff in the Ministry’s Health and Safety Group will be transferred to the new agency on the same terms and conditions of employment". Former DoL health and safety managers moved to positions in MBIE. They await the announcement of positions in the new agency structure to make their applications.
Frontline health and safety inspectors are going through their third significant restructure since OSH was established. Inspectors’ functions are the focus of the changes and the Agency structure. Frontline staff have low morale and see the anticipated management reshuffle as rearranging the deck chairs on the Titanic.

With respect to the second initiative, the initial views of the Independent Taskforce engagement with expert reference groups are not encouraging. Members met with academics, employers, employee representatives and Health and safety inspectors. In comments regarding the contemporary workplace they acknowledged the legislation is outdated , due to the individualisation of the workplace relationship for employees.

They identified employee representation and participation, as envisaged in the Health and Safety in Employment legislation, as a “non-reality".
Instead of empowering workers they appear to naively hold the view ‘’culture change’’ can be made in the workplace and that a ‘’ shame the worker’’ campaign modelled on television drink-driving campaigns will do the job.
Nonetheless there was no challenge to continuing public service management of health and safety compliance.

Individual employees will continue to have no ability to influence workplace health and safety nor enforce the law.

This compares poorly with their ability as employees to enforce rights under the Employment Relations Act 2000. That Act allows employees and employers to act or appoint a representative to act for them in relation to employment rights under that legislation as well as
the Accident Compensation Act 2001, the Equal Pay Act 1972, the Holidays Act 2003, the Human Rights Act 1993.

The Health and Safety in Employment Act 1992 is not included. Health and safety prosecutions heard in the District Court are expensive and time-consuming. Other than Department of Labour prosecutions, very few cases have ever been taken by or on behalf of injured employees.

Relying on a structure of inspectors and voluntary compliance will fail. It would be better to allow employees and employers to take direct responsibility for penalising health and safety breaches through their own actions and their own representatives under the Employment Relations Act. That is what employees have been able to do with their other employment rights for the last 22 years. Trust them.
- Phillip de Wattignar

* This opinion piece appeared in the hard copy edition of the Otago Daily Times on Monday April 8 2013

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