ensure their compliance with the new rules regarding
In this Issue: the sending of unsolicited commercial electronic
Lane Neave - Winner of the Concordia messages.
Employment Law Award for 2007
Unsolicited Electronic Messages - So What if I Along with the introduction of the Act, came the
Breach! introduction of the Unsolicited Electronic Messages
Regulations 2007 (Regulations). The Regulations
Don’t Go Where?
deal with the more practical issues arising under the
Worth the Paper It’s Written On Act, including things such as:
1. the warrant of appointment of an enforcement
Lane Neave - Winner of the
2. the form and manner that formal warnings and
Concordia Employment Law search warrants should take; and
Award for 2007 3. the rules surrounding the issue of infringement
At the prestigious New Zealand Law Awards, held in
Auckland on Thursday 8 November 2007, Lane Neave The Regulations encapsulate the enforcement
won the coveted Concordia Employment Law Award provisions provided under the Act. Anyone who
of the Year. contravenes the Act can:
Our Employment Relations Team was described by 1. face warnings and civil action;
voters as “Wasting no time in the briefing phase – and
cottoning on in short order, with an excellent 2. be issued with infringement notices; or
understanding of the issues” and “Providing
representation that is responsive, pragmatic and well 3. have an injunction brought against them.
planned strategies achieving great outcomes”.
The Regulations hold that where individuals are issued
A big thank you to all of our clients who voted for us an infringement notice, they can be fined $200.00 per
and who have helped us to win this award for 2007. civil liability event, whilst organisations can be fined
$500.00 per infringement.
Lane Neave’s Employment Relations Team consists
of: Perhaps one of the most important issues the
Regulations provide for is that individuals or
Andrew Shaw - Partner organisations can object to being issued with an
Glenn Jones - Partner infringement notice provided certain grounds are met.
David Caldwell - Partner The Regulations stipulate that any objections to a civil
Amy Shakespeare - Senior Solicitor infringement notice must contain a number of formal
Gareth Abdinor - Solicitor requirements.
In December this year, our Employment Relations The purpose of allowing objections under the Act is to
Team will be joined by Fiona McMillan. ensure that members of the public have the right to
object if they are dissatisfied with the decision of an
Unsolicited Electronic Messages - So What enforcement officer to issue them with an infringement
notice. The overall purpose of this is to create a fairer
if I Breach! enforcement regime.
Following the enactment of the Unsolicited Electronic
Messages Act 2007 (Act), businesses have scrambled The Act seeks to regulate the extent and manner in
to get their electronic client databases in order, to which electronic media is used for marketing and
promotional purposes in New Zealand. The
Regulations supplement the Act’s enforcement all employees to have a written employment
provisions and prescribe how certain penalties and agreement. Employers can be penalised (with
liability under the Act can be enforced. penalties up to $10,000.00) for failing to comply with
this provision. While in practice, this occurs fairly
Amanda Kernahan/Andrew Shaw
rarely, a number of other negative outcomes can be
avoided with a proper written employment agreement.
Don’t Go Where?
When an employee does not have a written
The issue of union access to workplaces is always employment agreement, the Act still implies a number
highly contentious. The Employment Relations Act of terms and conditions into their employment. Annual
2000 (Act) gives unions a wide right of access to talk leave, public holidays, sick leave, and other so-called
to members in their workplace. In the past, the Court standard benefits are entitlements irrespective of
has decided that approaching call centre employees at whether or not that is recorded in writing.
their desks may be part of what is covered by
reasonable access. Where an employee has been given an employment
agreement and, for whatever reason, it has not been
Given that the Act also provides a right to union signed, but the employee has commenced work, the
meetings, it is perhaps unsurprising that one Courts will usually assume that the terms written into
Christchurch employer tried to argue that this union the employment agreement govern the employment
access right could only be exercised to speak to relationship, except where the law requires the
employees individually, and not in a group in the provision to be agreed in writing (for example restraint
nature of a union meeting. of trade), or where the employee has indicated that
The decision of the Employment Court in Terry Young they do not agree to a particular provision.
Limited v NZ Engineering Printing & Manufacturing A recent decision in Griffin v Petworkz Online has
Union did not take the same view. The Court held that illustrated another reason for the importance of a
given that collectivism was a key thrust of the Act, it written employment agreement. Most employers will
was nonsensical to suggest that the union could not be aware that an employee has 90 days within which
use its access at any time to speak to a group of an alleged personal grievance has arisen to notify the
employees together. employer of that grievance.
While this may be the correct view, it potentially At the end of the 90 day period, the personal
widens the scope for workplace disturbances by grievance cannot be pursued except with leave of the
unions. The Court’s decision failed to define the Authority. Leave will only be granted in certain
difference between organised union access and a circumstances. One of those circumstances is where
union meeting. As both occur in paid work time, and a the employee was not provided with the required plain
union stop work meeting is limited in time only by the language explanation.
number of hours that an employer is required to pay, it
is difficult to see where the line between access and In the above case, the employee claimed that because
meetings will be drawn. she did not have a signed employment agreement,
she could raise her personal grievance out of time.
Employers should be aware that, provided reasonable The Authority rejected this argument, saying that in
notice is given, a union has the right to exercise fact the employee had been given the opportunity to
access to the workplace for union purpose (which have a written employment agreement, but that she
includes recruitment) at any time. “simply failed to turn her attention to it”.
Amy Shakespeare Amy Shakespeare
Worth the Paper It’s Written On
We often have employers come to us in circumstances Employment Relations Team
where an employee has either not been presented
If you have any queries in respect of the above, or any other
with a written employment agreement, or alternatively, employment law issues, please contact a member of Lane
having been given a written employment agreement, Neave’s Employment Relations Team: Glenn Jones, Andrew
but failed to sign it or return it. Shaw, David Caldwell, Amy Shakespeare and Gareth
The starting point, as most employers are aware, is
that the Employment Relations Act 2000 (Act) requires
Our aim is to assist our clients to be proactive in ensuring statutory
compliance and best risk management in the area of employment law.
This publication is, however, necessarily brief and general in nature. You
should therefore seek professional advice before taking any action in
relation to the matters dealt with in this publication.
Employment Briefs is published monthly