[DUNCAN COTTERILL] EMPLOYMENT LAW CHANGES ARE ON THE WAY – WHAT YOU NEED TO BE AWARE OF
There are a couple of employment law updates that are worth noting. The first is a very likely and imminent change, the second is more “left field” but is noteworthy just the same.
Employment agreement update required as extended timeframes for claims of sexual harassment in the workplace about to become law
The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill is in the final stages of consideration by Parliament, and is likely to be passed in May. It will come into force the day after it receives Royal assent. The amendment will change the information that must be included in new employment agreements, so employers should start preparing early.
The purpose of the Bill is to extend the time available to raise a personal grievance that involves allegations of sexual harassment from 90 days to 12 months. The amendment is considered necessary because for a person who has been the subject of sexual harassment, 90 days may not be enough time to bring a claim because it can take people some time to consider what has occurred and feel safe to raise it with others.
The new one-year timeframe only applies to events that occur (or that come to the notice of the employee) after the amendment comes into force. Any event that occurred prior to that date retains the 90-day time period.
In addition to extending the timeframe, the Bill requires a plain language explanation of the provision to be included in all employment agreements entered into after the provision comes into force.
Existing employment agreements will not need to be changed. However, it is recommended that employers provide existing employees with notice of the additional entitlement, and take the opportunity to remind employees about harassment policies and expectations for workplace conduct.
Our national employment team is available to review your employment agreements and policies and answer any questions you may have. Please contact a member of our employment team to discuss further.
Parliament to consider legislation to criminalise theft by an employer
A member’s bill, the Crimes (Theft by Employer) Amendment Bill, has been drawn from the ballot and will be considered by Parliament.
The Bill seeks to amend the Crimes Act 1961 to provide that not paying an employee their entitlement is theft. This would criminalise the actions of any employer who intentionally fails to pay any salary, wages, or other monetary entitlement to an employee, including payments required by their employment agreement or by any other legislation (including the Holidays Act 2003, Minimum Wage Act 1983, or the Wages Protection Act 1983).
Of course, failure to pay employees what they are due is already a breach of the Employment Relations Act 2000 and any other legislation that may apply. Currently claims can be brought in the Employment Relations Authority by the employee, or by a Labour Inspector. These claims can result
in orders for payment of the amount outstanding, plus penalties of up to $10,000 for an individual or $20,000 for a company or other organisation. These penalties may be payable to either the employee or to the Crown. Additionally, individuals who bear responsibility for underpaying employees can be ordered to pay the unpaid wages out of their own pockets and can, in extreme cases, be banned from being an employer or an officer of an employer.
The penalty for failing to pay money due to the employee under the amendment to the Crimes Act would be:
• if the employer is an individual, a term of imprisonment up to one year, a fine up to $5,000, or both; or
• if the employer is not an individual, a fine up to $30,000.
The Council of Trade Unions has already announced its support for the Bill, and has called on all political parties to back it. No party has yet announced its position on the Bill.
The Bill has now been formally introduced to the House, and is awaiting its first reading. If passed, it will be referred to select committee for the public to make submissions.
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