As of 1 April 2011, a number of changes (some major, some minor) to both the Holidays and Employment Relations Acts will take effect. While you probably have seen bits and pieces of information on the law changes, we thought it would be helpful to review the highlights here.

90-Day Trial Period

Perhaps the biggest change of all is the roll out of the 90-trial period to all employers. We have discussed this change in detail in both our September and December 2010 articles. However, a few important things bear repeating.

• If you are hiring an employee under the 90-day trial period provision, the Employment Agreement must contain a clause to that effect and the Agreement must be signed before the employee commences work. If it is not signed when work commences, the trial period is nullified.
  
• The 90 days are calendar days and start when the parties enter into the employment agreement.
  
• The employer must operate in good faith throughout the working relationship, even when an employee is working out her trial period. Any commitments made by the employers in the employment agreement must be acted upon; and obligations of a good faith employer, such as communication regarding performance concerns, must be met.
  
• While it is easier to terminate an employee working under a trial period, due care must be taken with the termination process. This is not a "fire at will" provision.

Union Access to the Workplace

A significant change in this section of the law is that union representatives must now request and obtain the consent of the employer prior to entering the workplace. Consent must not be unreasonably withheld.

Additionally, the employer must advise the union rep within one working day of the request if consent is granted. If the employer has not replied within two working days of the request, it is assumed that consent has been given. If the request is denied, a reason must be provided in writing.

Paying Out One Week of Annual Holidays

This is a new provision within the Holidays Act. There are obligations for both the employer and the employee within this section of the Act.

An employee's request for payout of a portion of his annual holidays must be in writing. He does not have to request a full week at one time but can, instead, make multiple requests subject to the total number of days requested not exceeding one week in each entitlement year.

Employers must consider the request within a reasonable period of time and advise the employee of their decision. Requests may be declined, and the employer is not required to give a reason for her decision.

Proof of Sickness or Injury

Previously, before requesting a medical certificate for three consecutive days of sick leave, it was necessary for an employer to believe that an employee's reason for sick leave was not genuine. The new provision drops this requirement. Additionally, if an employer is prepared to pay the costs of obtaining the medical certificate, she can request proof for any period of absence.

Additional Holidays Act Changes

There are several other changes to the Holidays Act that you should be aware of. We don't have space to detail them all here, but they primarily fall into the following categories.

• "Relevant daily pay" and "otherwise working day" provisions regarding entitlements to public holiday benefits
  
• Transfer of public holidays
  
• Alternative holidays

Seek the Advice of Employment Specialists

Penalties are severe for non-compliance with the Holidays and Employment Relations Acts. While we have highlighted here the major changes to these Acts, our comments are neither legal opinions nor detailed descriptions of the new provisions. Be a smart employer and seek the advice of employment specialists - recruitment professionals, employment lawyers, human resource experts.

You can also find additional information and an Employment Agreement builder incorporating the new law changes on the Department of Labour's website: www.ers.dol.govt.nz.

Ragtrade Recruitment is dedicated to helping our clients, both employers and employees, make sound employment decisions. We welcome your enquiries.

Submitted by Managing Director, Gaye Harford in collaboration with Lorraine Warshaw