February 2018 Newsletter


Hello, and Happy New Year! We hope you all had a great well earned rest over the Christmas break. Thanks for taking a moment to read our newsletter updating you on the new proposed changes to the Employment Relations Act 2000 and other important issues regarding the Employment of Staff.


The Rise and Rise of Collective Agreements

With a change of Government in late 2017 Unions are already starting to discover a new lease of life with activity within the workplace growing significantly.

The Coalition’s more favourable stance on the role of Union’s within the New Zealand workforce, supported by pending law changes that will promote collective bargaining, will soon see many Employer’s facing situations that they have not encountered in the last decade.

A Collective Employment Agreement can only exist after consultation and agreement with the Employer, where there are two or more members of the Union employed within the workplace. The Union must initiate bargaining for the proposed collective by issuing a notice to the Employer specifying the nature of the work types to be covered by the Agreement. The Employer must then negotiate in Good Faith with the outcome likely to be the agreement of common Terms and Conditions of employment which covers not just those Employees who are members of the Union at the time of ratification, but any other Employees whose work falls under the coverage clause, and who join the Union during the currency of the Collective – a period not exceeding three (3) years but more likely to be in 12 month renewals.

Proposals already announced by the Government, but still subject to the drafting of legislation, select committee consideration, public submissions and then reading within Parliament (a process that can traditionally take 6 – 9 months) will however see the ability of the Unions to capitalise on this new environment increase significantly. These proposed changes include:

  • Freeing up the “access” ability for Union Officials to enter the workplace to canvas for new members and to promote the benefits (as they see them) of Collective Bargaining and Implementing greater protection to Union Members;
  • The reinstatement of the “90 Day Rule” meaning that any new employee, in a workplace where a Collective already exists, will automatically be covered by the Terms and Conditions of that Collective for the first 90 days of their employment without them having to join the Union;
  • Strengthening of the obligation to conclude bargaining for a Collective Agreement and removal of the ability of the Employer to opt out of a Multi-Union Collective Agreement covering several workplaces;
  • Outlawing of the current legal provisions to deduct part of the Employees weekly pay when the Union implement a partial strike;
  • The requirement to pay Union Representative’s reasonable pay rates while conducting Union business during ordinary business hours. 

Given the above proposed (pending) changes, it is highly likely that Union Membership will increase significantly during the term of the current Government (as this is what the changes are designed to achieve) with this resulting in new Collective Agreements being established in workplaces that have not experienced this previously. This can significantly change the workplace environment and as such Employers will need to exercise a high degree of caution in all aspects of the potential relationship with a Union.

At Russell Drake Consulting we specialise in providing representation to Employers in all aspects of the relationship with a Union, and in facilitating the collective bargaining process. If you have any questions in relation to the content of this article or require any assistance related to Union Membership or Collective Agreements please feel free to give us a call.


Labour Inspectors cracking down on Minimum Standards – what does this mean for Employers?

If your business depends on employing migrant workers, then you will want to ensure that you are complying with the minimum employment entitlements as defined by the Employment Relations Amendment Act 2016.

These minimum entitlements are; a written employment agreement, minimum rate of pay, break entitlements, annual and public holidays, a safe workplace, accurate pay and holiday records, parental, sick and bereavement leave. Breaching these provisions can result in infringement notices and/or penalties being imposed on the Employer. A Labour Inspector, the Employment Court and/or the Employment Relations Authority have the power to issue penalties and infringement notices.

In addition, Employers who receive an infringement notice or penalty for less than minor breaches will be deemed non-compliant with New Zealand employment law and may then be subjected to a set stand down period.

This stand down period will exclude an Employers eligibility to support work visa applications. If the Employer has migrant workers employed within their business at the time they are deemed to be non-compliant, these migrant workers will be able to work up to the expiry of their work visa. However such workers will not be able to extend their work visa with the non-compliant Employer. 

Stand down periods can range from six (6) months to two (2) years. The length of the stand down period will be dependent on the severity of the breach and the subsequent penalty imposed. For example a six (6) month stand down period may result in a penalty of $1,000.00 or less, whereas a two (2) year stand down period may result in penalties of $50,000.00 and over.

The intent of the stand down period is not to penalise those Employers who have committed very minor breaches and who demonstrate a desire to comply with minimum standards. Such Employers are unlikely to be subjected to a stand down period, however this will be assessed on a case by case basis.

There are further implications for an Employer who is subjected to a stand down period. If an Employer is subject to a stand down period their name will be published on a stand down list that is readily accessible to the public. This list will name the Employer, state what legislation they have breached and specify the length of the stand down period they are subject to. The list is updated weekly and is maintained by the Labour Inspectorate. It can be accessed globally and so the implications for an Employer could be significant and serious, particularly in regards to hiring migrant workers after the expiry of the stand down period.   

If an Employer is deemed non-compliant and subjected to a stand down period, they will be able to appeal the decision. The Employer can request a hearing at the District Court to challenge an infringement notice or an Employment Relations Authority determination. To challenge an Employment Court decision, an Employer may apply to the Court of Appeal for leave (permission) to appeal the Employment Courts decision.

Employers who depend on migrant workers to make up the majority of their staff should ensure that they are familiar and compliant with minimum employment standard requirements to avoid being subjected to a stand down period.


New Zealand’s aging workforce – how will this effect your business?

If you think it is hard to find great workers now, it is going to be even harder in years to come as New Zealand’s workforce is aging and the population is depleting. The implications for Employers will be significant, the way in which an Employer operates their business will have to change to accommodate for the aging workforce.

The implications on Employers will spread throughout every aspect of their business. Whether it be from Health and Safety measures right down to policies and procedures in the workplace. Studies have shown that ‘older’ workers are at a higher risk of having a fatal work related injuries than ‘young’ workers. However, ‘older’ workers are at a lower risk of non-fatal work related injuries than ‘young’ workers. This could mean that changes to the way Health and Safety regulations operate in your workplace will need to change to counter the Health and Safety risks faced by ‘older’ workers.

The real challenge Employers will be facing now is anticipating and preparing for the challenges associated with an aging workforce. Most business do not have an action plan in place which provides them the flexibility they need to counteract any challenges they may face as the workforce ages.

Employers will need to have a better understanding of their policies and practices, client profiles and staff requirements to mitigate any potential challenges. Employers will have to think twice before letting staff go or retire as they may not be able to rehire the ideal candidate.

To put this in perspective, statistics show that in 2012 over 50 percent of New Zealand’s workforce was over 42 years of age. Studies also predict that by 2031 New Zealand’s population will be made up of over more than one million people aged 65 and over.

Although there is a real benefit of hiring ‘older’ workers as most Employer’s perceive ‘older’ workers as more experienced and more reliable in comparison to a ‘young’ worker, the pitfall Employer’s experience when hiring ‘older’ workers is that they a less computer literate, more resistant to change and at a higher risk of experiencing on-going health problems. 

If you require any assistance in developing your workforce plan or reviewing your policies and procedures to align to an aging workforce please feel free to give us a call.


Effective Communication during Change

During change, it is important to consider the phrase; communication, communication, communication.  Communication about change needs to be clear, continual, and consistent. 

You communication goal is to create awareness of change and help people to understand why change is necessary. 

What is Communication?

Communication is considered to be verbal and non-verbal, and also involves active listening. It helps to keep a simple definition in your mind of what communication is, as it will help you to remember the purpose and goal of your interactions. 

Creating a Communication Plan around change

Creating a communication plan is key when identifying what, when, why and how communication is conducted with your Employees during change.  A communication plan is a productive tool for Employers as it is evidence that you value the importance of clear, continual, and consistent communication.   Simply telling Employees about change and expecting them to then get on with it is a one-way communication method which is often perceived negatively and presents as a contributor to Employees resisting change.

Changes should not be spontaneous and ‘off the cuff’.  They should be well thought out, planned appropriately, and communicated effective.  Where possible, changes should involve a consultation process, and provide an opportunity for those affected to provide their feedback.  In fact, feedback is an essential part of ensuring your communication is successful. 

If you are concerned about negative feedback, consider managing that rather than avoiding feedback altogether.  Consider being responsive to this feedback as this will make or break the communication plan.  Failing to do these basic steps will result in those affected constantly wondering, ‘what’s next?’  When Employees notice you are not prepared they will lose confidence in you. 

Awareness of your feelings and managing your responses are two areas of emotional intelligence that are essential to communication, and effective change management.

Active listening is also a very useful habit to remember when communicating and managing change.  One of Stephen Covey's Seven Habits of Highly Effective People is "Seek first to understand, then to be understood" which captures the value of listening in the importance of effective communication. 

Please contact us if you need any advice regarding communication with Staff around any aspect of their employment environment.





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