Workplace law update –what’s on the horizon?

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.

As we closed out 2022 employers were faced with the pressures of labour shortages, high inflation and increased employee expectations (including of pay and conditions, culture and wellbeing measures).

Significant workplace law changes are on the horizon as we head into 2023. Key issues for employers are:

Immigration changes – median wage continues to rise

In 2022, Government implemented an accreditation system for employers seeking to employ migrant employees. It also announced that the median wage ($27.76) is going to increase to $29.66 in February 2023.

While migrant workers are in short supply across most industries, positively Immigration New Zealand processing times are remarkably speedy at present, providing some relief.

Fair pay agreements

The new law on fair pay agreements was passed into law, and the new bargaining system commenced on 1 December 2022. Fair pay agreements will establish an “award” system similar to Australia’s ‘modern awards’, setting minimum terms and conditions for workers across an industry or occupation. Employers in affected industries/occupations should ensure they are informed of and have their voices heard in bargaining, and ensure minimum terms are met. The challenge will be how to stand out when universal standards apply.

Employee or contractor?

Scrutiny of independent contractor arrangements will continue, following several Employment Court decisions recently, the latest of which involved Uber drivers. In that case contractor drivers successfully argued they were employees. Other affected industries for scrutiny include construction and couriers, which have primarily operated using contractors until now.

Additionally, the Tripartite Working Group of New Zealand continues to make recommendations to Government, urging it to provide more clarity around the definition of ‘employee’, on the back of recent employee classification disputes.

Health and Safety – WorkSafe’s focus

Recently we have seen WorkSafe’s prosecution approach shift, including by focusing on small business owners and expanding the reach of health and safety obligations to previously unlikely parties. Common themes among officer prosecutions illustrate:

• Inadequate training of workers, including on how to mitigate or eliminate hazards and risks;

• Lack of knowledge of and departure from industry standards;

• Failure to learn from previous health and safety incidents; and

• Failure to identify hazards and implement controls adequately.

Given the expanding interest and reach of WorkSafe, it is increasingly important that employers/officers are aware of and compliant with health and safety obligations.

The issue of wellbeing in the workplace, and expectation that employers will manage psychosocial risks in the same way as other hazards is also high on the agenda, with WorkSafe releasing new resources to support businesses here.

To address these issues, we recommend:

• Ensuring mental health and wellbeing are proactively supported and managed, including through policy and wellbeing measures.

• Making workplace culture a top priority. This is essential to support retention and recruitment of staff. Consider what makes you an employer of choice, how you communicate this to the market, as well as how to secure your MVPs to keep them committed to you. Keeping this focus is almost always more effective (and often cheaper) than having to counter a potential new employer’s offer.

• Review contracting arrangements, to make sure these are fit for purpose. If not, consider alternatives and any associated transition strategy.

• If you will hire migrant workers, get ready by securing accreditation early. This is essential to a smooth path, securing migrant candidates at offer stage.

If you would like advice on how to best prepare yourself for these changes, contact a member of our team, for a free 15-minute consultation, on 0800 354 821.

Kate Ashcroft, Partner, of Copeland Ashcroft Workplace Lawyers

Copeland Ashcroft Workplace Lawyers operate the NZCB Employment helpline and providing specialist advice, representation and support across employment, immigration and health and safety law, to businesses throughout New Zealand. Why us? We know what works, and partner with you to achieve the results you want. www.copelandashcroft.co.nz