Employment law changes benefit employers?

Since April 1 a number of changes to employment laws have come into force. These changes are essentially to the Employment Relations Act 2000 and the Holidays Act 2003, and in some instances are quite significant. 
Employment Relations 
Act 2000
The law now allows all employers and their new employees to agree to a trial period of up to 90 days, whereby the employer has the right to terminate within that time without the ability of an employee to raise a personal grievance for unjustified dismissal. The law initially only permitted this for employers with fewer than 20 staff.
The trial period must be agreed in writing as a term in employment agreements. There are a number of requirements and conditions attached to utilising this provision and it must be noted that the trial period must commence on the first day of employment. So agreements should be signed before the first day of work.
Advice should be sought on implementing and managing trial periods, including assistance with drafting the relevant clause and its relationship with policies of the employer and collective agreements. 
Also new is that unions need to obtain consent before entering your workplace. You cannot unreasonably withhold consent if a request is made, and there are timeframes for responding and consequences for not responding within the prescribed time. 
One change that has not come into force yet is the requirement to retain a signed copy of the employment agreement. From July 1, 2011 employers must retain and supply upon request a signed copy of the individual employment agreement; or a copy of the terms and conditions of employment if the employment agreement is not signed or the terms have not been agreed to. 
The law now permits an employer to communicate with employees during collective bargaining (including, without limitation, the employer’s proposals for the collective agreement) subject to good faith and existing provisions of the Act.
The test for justifying an employer’s actions such as termination or discipline has now changed to ‘whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred’. 
The new law sets out factors the Employment Relations Authority and Employment Court must consider and are a clarification of the process requirements. The legislation also provides that a dismissal or action must not be determined to be unjustified solely because the defects in the process were minor or technical; and did not result in the probability that the employee was treated unfairly.
Reinstatement is no longer the primary remedy for a personal grievance claim; the Authority will now be able to impose a penalty on parties who delay or obstruct the Authority, and priority will be given to mediated cases, with the ability to strike out frivolous or vexatious claims. The new law has doubled the maximum penalties: for an individual, it increases to $10,000 and for a company, to $20,000.
The role of Department of Labour labour inspectors and their enforcement powers will change and will extend to supporting businesses to be compliant. 
Holidays Act 2003
Employees can now cash-up up to one week of their four weeks annual holiday entitlement for each entitlement year and the Act addresses specific issues to be taken into account.
The default formula for calculating ‘relevant daily pay’ is now called ‘Average Daily Pay’ and now considers gross earnings over a 52-week period rather than four weeks. 
An employer and employee may now agree in writing to transfer a public holiday to another day or 24-hour period subject to certain criteria, including that the day being transferred and the day to which the public holiday is being transferred are both otherwise working days for the employee. 
The Holidays Act now provides for a definition for discretionary payments, and the requirement for ‘suspicion based on reasonable grounds’ for proof of sickness or injury within three days is removed.
In terms of when an alternative holiday is to be taken, now if agreement cannot be reached the day must be taken on a date determined, on a reasonable basis, by the employer, with at least 14 days notice. 
As with the Employment Relations Act, the penalties have been doubled under the Holidays Act.
As mentioned, some of the changes are significant and would require employers to seek advice before relying on the summary. 
The abovementioned law changes are best considered separately under the respective Acts of Parliament. The scope of this article permits a summary of the changes and advice should be sought on its impact on your business.
Parvez Akbar is a senior solicitor at EMA Legal. www.ema.co.nz/advice