Lane Neave - Winner of the Concordia Employment Law Award for 2007

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Lane Neave - Winner of the Concordia Employment Law Award for 2007 Powered By Docstoc
					                                  NOVEMBER 2007

                                                         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