Quick Reads

Gloriavale Result Announced

Six former female residents of Gloriavale successfully obtained a declaration from the Employment Court in July that they were employees of Gloriavale. The women had worked full-time cleaning, washing, sewing and cooking, supporting both the community and its business endeavours.

The Gloriavale defendants denied that the women were employees. They claimed that they were “volunteers” because the work was conducted as an expression of their religious commitment to live in a communal setting or, alternatively, that they were conducting domestic work as part of a “bigger family”. They claimed that a finding of an employment relationship would be incompatible with the true, religious nature of the relationship.

The Employment Court found that the work was “grinding, hard, unrelenting, and physically and psychologically demanding” that had left “deep scars” for the plaintiffs.

In reaching her conclusion that the women were employees, Chief Judge Ingles noted the importance of adopting an approach that recognises the protective purposes of the Employment Relations Act 2000 when considering whether a worker is an employee. She considered the nature of the work, the nature of the facilities in which the work was conducted and the fact that the employees had little choice but to do the work. The employees were not volunteers, the classification of the work as domestic was not relevant, and freedom of religion is subject to New Zealand’s laws, including employment laws.

This follows the Employment Court’s decision in May 2022 that three former male residents of Gloriavale were employees from the age of six until they left the community, and the Uber decision in October 2022 that Uber drivers are employees and not independent contractors. These cases show a willingness by the Court to look behind the arrangements in place between the parties to determine the true nature of the relationship and apply minimum employment entitlements where an employment relationship exists.

Presenteeism Versus Absenteeism

In a recent survey conducted by Frog Recruitment, more than half (52 per cent) of Kiwi workers admitted they are guilty of going to work sick.

Frog Recruitment Managing Director Shannon Barlow says the behaviour is driven by various factors, including financial constraints, the pressure of heavy workloads and the culture of Aotearoa New Zealand’s strong work ethic, where workers feel pressured to demonstrate their commitment to their employer.

Barlow suggests employers and managers discourage presenteeism and work with an unwell employee to reduce workloads or assign tasks to other team members. However, disappointingly, some employers are reverting to a time when a ‘soldiering on’ attitude was acceptable, pressuring employees to come to the office regardless of illness.

“The expectation from employers to staff should be clear – get well and keep your germs at home,” says Shannon.

“More than a quarter (28 per cent) of respondents felt that while the sick leave entitlement had increased [from five to 10 days per year], it wasn’t enough. We are witnessing people not using their sick leave for a common cold or sore throat; however, this often backfires when the ‘sniffles’ morph into a more serious illness, putting themselves and their colleagues at risk.”  Shannon says companies need to create a supportive work culture that encourages the appropriate use of sick leave, whether an employee is at the workplace or working from home. Valuing and prioritising employee wellbeing creates a healthier and more productive workplace.

UPDATE TO PG LEGISLATION

From 13 June 2023, employees will now have 12 months to raise a personal grievance related to sexual harassment.

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act allows employees more time to raise a personal grievance, rising from 90 days to 12 months. For all other personal grievances, the time to notify the employer is unchanged at 90 days.

The new time applies to sexual harassment events that happened, or came to the notice of the employee, on or after 13 June 2023. The new time applies even if the employee leaves the employment during the 12-month period. Reporting sexual harassment can be difficult. It is common for victims of sexual harassment to wait a long time before coming forward, if at all. The change will improve the personal grievance process for victims of sexual harassment that has occurred in their employment, by allowing them more time to consider what has happened before deciding to come forward.

AOTEAROA TOPS LIST OF LIFE–WORK BALANCE NATIONS

In a recent study from global employment experts Remote, Aotearoa New Zealand lands first in the top 10 best nations for life–work balance, a term describing the wave of professionals creating a healthy relationship between their careers and personal lives.

Remote’s global index study assesses the quality of life–work balance in the world’s top 60 GDP countries, ranking each nation out of 100. The overall score is determined through factors including minimum wage, sick leave, maternity leave, healthcare availability, public happiness, average working hours and LGBTQ+ inclusivity.

Aotearoa scores highly across several metrics, offering a generous statutory annual leave allowance (32 days), a high rate of sick pay (80 per cent) and a government-funded universal health care system.

REMOVAL OF REQUIREMENT TO SELF-ISOLATE

Since 13 August 2023, New Zealanders who test positive for COVID-19 are no longer required to self-isolate.

Normal sickness policies and procedures apply. Employees can use their sick leave if they are sick with COVID-19 (or anything else) and cannot work.

This may be a good time to review, update or remove COVID-19 policies from your policy handbook. This includes if you want to force your employees to test for COVID-19 or isolate for a certain time if they test positive owing to the nature of the business and the risk of reporting to work with COVID-19.

However, common sense would still say that health and hygiene rules apply: if employees are unwell, they shouldn’t come to work.

NEW LAW TO PROTECT MIGRANT WORKERSS

The Worker Protection (Migrant and Other Employees) Bill is now law and will protect vulnerable workers in Aotearoa New Zealand.

The legislation will come into force from 6 January 2024. It will amend the Immigration Act 2009, the Employment Relations Act 2000 and the Companies Act 1993 by introducing a fit-for-purpose offence and penalty regime to deter employers of temporary migrant workers from non-compliance with their obligations.

The exploitation of migrant workers can include a range of non-compliance with employer obligations through to forced labour and people trafficking.

As part of these legislative changes, employers must comply with requests from the Labour Inspectorate within 10 working days, including providing employment-related documents. A new infringement offence has been introduced for employers failing to comply with the Inspectorate’s request within the 10-working-day deadline.

The law change will empower the High Court to disqualify a person from being a director of a New Zealand company if they are convicted of exploitation of unlawful employees and temporary workers under the Immigration Act 2009 or a trafficking in persons offence under the Crimes Act 1961.