The amounts set out above are also the penalties that will be applied for other breaches of the Employment Relations Act.
The Authority will now have the power to dismiss cases, at any time (and to award costs) in instances where they believe a case is frivolous or vexatious. Where the Authority has determined that a matter was frivolous and/or vexatious and has dismissed it, the party that has been dismissed can appeal to the Employment Court which can then direct the matter back to the Authority.
The Employment Court has also been given the additional power to dismiss any case they see as frivolous or vexatious. This is an extension of the Employment Court’s power and conforms with the power given to the Authority.
Holidays Act 2003
There will also be changes to the Holidays Act 2003.
These include what we hope is a clarification of the calculation for what to pay staff for sick leave, bereavement leave and public (and alternative) public holidays. This is hoped to be achieved by a calculation on the basis of “relevant daily pay” which is defined by the Act.
Where because of say, the variety of hours worked, the employer cannot calculate the “relevant daily pay” they then have to calculate the pay rate using the “average daily pay” formula. People will need to be aware of when and how to use the relevant formulae and if the employer and employee can’t agree on how a calculation should be done, a Labour Inspector can undertake the calculation.
A major change to the Holidays Act is that from 1 April employees will be able to “cash up” the fourth or subsequent week(s) of the annual leave entitlement.
Cashing up can only take place at the request of the employee and the request must be in writing. An employee can only ask to “cash up” after 12 months’ continuous employment.
There is a process for the employer to follow in “cashing up” and if the employer does not follow the process correctly then there is a probability that they could end up paying twice for the holidays.
With the change in government we have seen a turning back of the clock to allow employers and employees to agree to change the date on which they celebrate public holidays. As always any agreement has to be in writing and must specify the details of the changes. This change in legislation will allow for the transfer of a day such as Waitangi day (or ANZAC Day) say when it fell on a Thursday, to be transferred to a Friday to allow for continuation of production or to allow for a long weekend for staff. This looks to be a practical reaction to what was a real nuisance for many employers and employees.
If you are at all unsure of your obligations, either as an employee or as an employer, we would encourage you to speak with one of our specialist employment advisors, who will be able to fit your obligations into the new legislative requirements.
