What a year it has been! Employers and employees have been taken into new territory. While it is generally considered that New Zealand has had an excellent health response 
to Covid-19, businesses have had to grapple with many issues from staff working from home where possible, reducing staff hours and rates of pay, what process to follow where redundancies were inevitable and wage and leave subsidies. While there have been business closures, it is generally considered that New Zealand businesses are now doing better than had been forecasted.
Some employers are still dealing with the legal fallout from the pandemic response, including personal grievances for unjustified dismissals and unjustified disadvantages and arrears of wages claims.
In returning to a new normality, you may have missed some important employment law changes that came into force this year and what is anticipated in the coming year.
The year that was
There are two main changes that may affect employers.
Triangular employment
From June this year, the law now allows employees in triangular employment situations to include a third party to a personal grievance they may have with their employer.
Employees can still raise a personal grievance with their traditional employer where they have grounds to do so. With the changes, an employee can now apply to the Employment Relations Authority to add a third party to the personal grievance if the third party has caused or contributed to the problem.
Common situations where triangular employment happens include where an employee is employed by an employment agency and is sent on work assignments to another organisation (labour hire or temping arrangements). Another situation would include where an employee is on a secondment from their employer to a host organisation. Another possible situation is where a third party provides significant funding to the employer with significant contractual control.
In these cases it may be the behaviour or action of the third party that has contributed to the problem, rather than the employer. Clearly this could include situations where the third party has abruptly terminated the arrangement and the employee is left without work. It may also include bullying or discrimination by the third party. In these situations, both the third party and the employer could potentially be responsible for providing remedies to the employee.
Privacy
From December, if there is a privacy breach, the law now imposes mandatory reporting of breaches where the breach causes or risks causing serious harm. Employers usually hold a lot of personal information regarding employees (or ex-employees). Employers should consider their policy on providing references and ensure permission is given to disclose that personal information as a breach may cause serious harm to a job seeker. If there is a breach, failure to report a breach would be an offence that could result in a fine of up to $10,000.
There is also a new offence of misleading an agency to obtain access to someone else’s personal information (eg. a prospective employer trying to obtain information from the old employer). A further new offence relates to destroying a document containing personal information knowing that a request has been made.
What is coming up next year
There are a number of proposed changes that may affect employers.
Minimum wage
In preparing wage budgets, the minimum wage will almost certainly go up to $20.00 an hour next year.
Sick leave
Minimum sick leave entitlements will almost certainly go up to 10 days each year, although the maximum number of sick days an employee may accumulate will remain at 20 days.
Fair Pay Agreements
Fair Pay Agreements are perhaps the most contentious of the likely changes coming up. They are agreements that are between unions and employers and set minimum terms and conditions of employment for all employees in an entire industry or occupation. Rolling out Fair Pay Agreements are likely to proceed slowly at first, but are likely to ramp up when “test cases” have been established.
Protections for “dependent contractors”
Dependent contractors are workers who are effectively under the control of an employer. They do not receive the legal protections that are provided to employees by law. They may operate their own business and may use their own equipment, but they may depend on one firm for most of their income and/or may have little control over their daily work.
The new Labour government has said that it will extend collective bargaining and other basic employment rights to dependent contractors including requiring written contracts and introducing a duty of good faith for dealings between the contracting parties.