Changes to the Canterbury Skills Shortage List and e-visas / 2015 wrap-up

Employment & Health & Safety

2015 wrap-up

2015 has been a busy year for the Employment and Health and Safety teams, with the opening of our Auckland office.  We are delighted to finish the year with news that the Employment team has been ranked by Legal 500 with clients describing us as providing “a superior level of service”.

Before we switch on our “out of office” and head to the beach, we thought it would be helpful to wrap up the most important and interesting decisions and developments of 2015 and cast our eyes forward to 2016 which is lining up to be another busy year for the team.

Health and Safety reform

We have been kept very busy this year with seminars and advice on the much anticipated reforms to health and safety law.

The Health and Safety at Work Act 2015 (HSWA) will come into effect on 4 April 2016 and will represent a significant shift in the health and safety landscape in this country.  You will no doubt be aware that the HSWA will increase potential penalties under the Act six fold and place responsibility for health and safety firmly on the shoulders of the most senior officers of organisations.  WorkSafe New Zealand is working on a raft of guidelines and regulations to complement and further implement the provisions of the HSWA and we expect those to be made available in early 2016.  We are expecting a busy first quarter of 2016 for this reason and will keep you closely updated.

The cake case

Probably the most talked about case of 2015 was the Human Rights Review Tribunal’s decision of Hammond v Credit Union where an employee who dropped the “C Bomb” on a leaving cake and circulated photos to friends on Facebook was awarded $98,000.00. This was awarded for her former employer’s breach of her privacy in following a sustained campaign to ensure that she could not be employed in her home town and to secure her dismissal from her current employer.  The compensation awarded was significant and indicated that the HRT would not hold back from making significant awards in the right circumstances.

The Hammond decision was followed swiftly by Singh v Scorpion Liquor (2006) Limited where an employee brought a successful racial discrimination claim in respect of the significant and regular bullying he was subjected to by his employer which culminated in him being hit on the head with a kickboard and punched.  He was awarded $45,000.00 in compensation, although this case has been appealed.

In two Employment Court decisions it was acknowledged that hurt compensation in the Employment Relations Authority and Employment Court had fallen behind where it should be and suggested that an upwards shift in compensatory awards was appropriate.

Our view is that 2016 will see some significant compensatory awards in appropriate circumstances in order to remedy the situation highlighted by the Employment Court.  We are also likely to see more and more cases being taken before the Human Rights Review Tribunal, rather than the employment institutions, given the potential compensation available.

The end of morning tea?

Informally dubbed “The Tea Break Law”, amendments to the Employment Relations Act 2000, which came into force on 6 March 2015, significantly relaxed the rest and meal break provisions of the Act.  The amendments did away with the rigid allocation of rest and meal break entitlements depending on how long an employee had worked and instead allowed an employer and employee to determine when rest and meal breaks would be taken, depending on the nature of the work.

The amendments also aimed to clarify the information an employer is required to provide when proposing to make a decision that could have an adverse effect on the continuity of an employee’s employment. As a result of the amendments, employers can lawfully withhold disclosure of information where that information:

• Contains confidential information about another person and disclosing it would lead to an unwarranted disclosure of the affairs of that person;
• Is subject to a statutory requirement to remain confidential; or
• Where there is a good reason to keep the information confidential.

New flexible working provisions were introduced which extended the right to request flexible working to all employees andeduced the length of time for an employer to consider a request of flexible working from three to one month.

Collective bargaining provisions were amended in order to introduce flexibility into the collective bargaining framework by removing the 30 day rule and allowing employers to offer new employees whose work is covered by collective agreements, but are not members of the relevant Union, employment on individual terms and conditions of employment.

Protection of vulnerable children

The Vulnerable Children Act 2014 came into force on 1 July 2014 introducing comprehensive measures to protect and improve the wellbeing of vulnerable children in New Zealand.   The Act unites five Chief Executives of Government Departments in developing and implementing a plan to protect children from harm.  Importantly, standard safety checks of workers who work around children are now required and those who provide services in regulated areas are required to adopt child protection policies to address the identification and reporting of child abuse and neglect.  Safety checks are to be conducted for new employees now and from 1 July 2018 for existing employees.

Employment Standards Legislation Bill

The Bill is working its way through Parliament and is currently with the Transport and Industrial Relations Committee for reporting on 12 February 2016.  If passed, the Bill will enhance the protection of employees who are employed under zero hours contracts. We will keep you closely updated.

We would like to take this opportunity to wish you a restful holiday season and happy and healthy 2016.

Immigration

Changes to the Canterbury Skills Shortage List and e-visas

There have recently been two major announcements, one by Immigration New Zealand (INZ) and the other by the Minister of Immigration (Minister).

INZ has announced changes to the Canterbury Skills Shortage List, which came into effect on 14 December 2015.  INZ has announced that four occupations are being removed from the CSSL – they are Painting Trades Workers, Upholsters, Electricians and Quantity Surveyors.

Whilst the occupations of Electricians and Quantity Surveyors have been removed from the CSSL, they will still be included on the Long Term or Immediate Skill Shortage Lists.  This means that people who meet the requirements on those lists for these two occupations can still submit work visa applications on the basis of employment being included on the Essential Skills in Demands Lists, without the need to undertake a labour market check.

Whilst the occupations of Painting Trades Workers and Upholsterers have been removed from the CSSL, it is important to remember that a person can still apply for a work visa based on an offer of employment for either of these two positions under the Essential Skills work Instructions.  However, evidence of a labour market check will need to be provided.  Therefore, this change should not be seen as advice that work visas will no longer be approved for these occupations, employers instead will need to prove they have made a genuine effort to locate a suitable New Zealander and have not been successful, hence the need to employ a suitably qualified/experienced migrant in the role.

INZ has also added an additional requirement to nine specific occupations included on the CSSL.  This requirement is that people applying for a work visa on the basis of employment in one of those occupations need to have at least 12 months’ relevant work experience in New Zealand.  The objective behind this addition is to facilitate further work visas for those already in Canterbury.  The nine occupations are Bricklayer, Drainlayer, Fibrous Plasterer, Floor Finisher, Plumber, Roof Tiler, Solid Plasterer, Stonemason, and Wall and Floor Tiler.

The second announcement, made by the Minister, was regarding e-Visas, which were introduced in a limited way earlier this year.  An e-Visa is a visa held electronically by INZ.  An applicant issued an e-Visa receives an electronic visa approval notification via email which sets out their visa start and end dates, and any conditions attached to the e-Visa.  This notification can be printed and held with a passport, rather than the passport being sent in for a visa sticker to placed into it.

To date, e-Visas have only been issued to a limited number of applicants.  However, the Minister has announced this month that e-Visas will now be rolled out further.  They will now be available to online applicants applying for all student, visitor and work visa applications (excluding Chinese nationals) who apply for a visa while they are in New Zealand.  They will also be issued to student, visitor and work visa applicants from visa-waiver countries who apply from offshore.  Employers therefore should start to become familiar with accepting these documents and reading them to make sure they are satisfied the employee in question has the right to work.  In the future, visa labels in passports will be a thing of the past.

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10/12/2015 – Jetstar lost application in Supreme Court to appeal decision that found in favour of employees having rostered breaks
10/12/2015 – Revenue Alert issued by IRD indicates some employee share schemes may now be considered tax avoidance
14/12/2015 – Car dealer who bragged about “hotboxing” luxury car awarded $20,000 after ERA found he was unfairly dismissed
21/12/2015 – Levin Poultry company fined $7500 and court costs of $750 for employing five Samoan nationals in NZ without a visa.

We would like to take this opportunity to wish you a restful holiday season and happy and healthy 2016.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Julia Hurren, Fiona McMillan, Jackie Behrnes, Siobhan Rastrick, Gwen Drewitt; Holly Swadel
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Julia HurrenFiona McMillan, Gwen Drewitt

Click here for other Employment Law or Immigration Law articles.

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Andrew Shaw
Mark Williams
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