Health and Safety Reform Bill

Worksafe NZ

As you may have seen in the Media coverage the Health and Safety Reform Bill has been reported back to Parliament which has made some improvements and clarifications. The Health and Safety Reform Bill will replace the old Health and Safety Act and is part of a number of changes aimed at reducing New Zealand’s injury and death toll in the workplace which is far too high. The bill is likely to become law later this year.

While the changes are primarily driven by the need to reform high-accident-rate industries such as forestry,  mining and farms the Bill will effect every business, including small office and retail businesses so you need to assess your business for potential accident-causing behaviour in your workplace. For example how many people stand on a chair to change a light bulb rather than using a set of steps?

Health and Safety is everyone’s responsibility – get it wrong and the penalties are significant.

Duty Holders

A Person Conducting a Business or Undertaking (PCBU) have health and safety duties toward their employees and to any other person affected by the work of the business or undertaking.  Duty holders’ obligations are limited to doing what’s in their ability to control and manage and is reasonably practicable. This makes job descriptions very important as a way to establish exactly what is in the duty holder’s ability to control and manage.

Directors, board members or partners, will now (as an officer of a PCBU) have a new duty to ensure that the PCBU complies with its duties. The bill expressly excludes those merely advising or making recommendations to an officer.

However, the responsibility sits with the PCBU, not all duty holders.

The duty holders are now personally liable and can faces fines up to several hundreds of thousands and even prison terms. This cannot be insured against.

In a shared workplace there may be more than one PCBU, the PCBUs are then required to consult, cooperate and coordinate with each other. The bill also clarifies how to do this.

A PCBU does not have a duty towards people who are at the workplace for an unlawful purpose.

Worker participation

The responsibilities of a PCBU have been clarified in the new Bill, under which a PCBU need to engage with the workers on health and safety matters.

Some flexibility has been added to ‘worker participation’ in health and safety matters in the workplace. Health and Safety Representatives and Committees are one way of meeting the worker participation requirement. Smaller workplaces with less than 20 workers in low risk sectors will not be required to have a Health and Safety Representative or Committee when requested by workers. All other businesses need to decide whether to elect a Representative and Committee when requested. If they are satisfied current worker participation practices meet the requirement of the new law they can decline the requirements.

Health and Safety Representatives will have the power to intervene if they see an unsafe situation with serious risk. There are limitations to and training requirements attached to their power.

Definition of a Workplace

The Bill defines a workplace as a place where ‘work is carried out, including anywhere a worker goes or is likely to be while at work’.

Some areas might not be workplaces all of the time. Farmers especially had some concern regarding allowing public to enter their land, but it has now been clarified that a workplace is somewhere where work is customarily carried out, including any place a worker goes or is likely to be while at work. So, farm buildings and immediate surrounds are under the duty of the farmer as a PCBU, other parts of the farm (like paddocks) are only workplaces while work is being carried out in that part. So, the farmer does not have a duty towards recreational users coming onto farm land unless work is carried out in that part of the farm at the time. The farm family home is also excluded from the farm workplace.

Volunteers

The bill will continue to distinguish between casual volunteers and volunteer workers, where casuals health and safety will be covered but the PCBU’s duty to any other person affected by the work of the business or undertaking but not to the extent of employees. Volunteer workers will have the same protection as any other worker.  If it’s purely a volunteer organisation with no employees it is not a PCBU so the Bill won’t apply. If the organisation has employees it’s a PCBU and the Bill applies.

The following would be classed as casual volunteering not volunteer workers: participation in fundraising activity, assistance with sports or recreations for an educational institute or club, assisting with activities for an educational institution outside the premises of the educational institution, providing care for another person in the volunteer’s home.

For further information, visit:

Worksafe New Zealand

Ministry of Business, Innovation & Employment

Legislation Updates

Health & Safety Reform Bill delay:

The proposed law changes to workplace health and safety have been delayed for at least two months because of concerns within the National Party caucus about its effect on small businesses and farmers.

The main areas being reconsidered are believed to be:

  • Exemptions for businesses with 20 staff or less from the requirement to have health and safety representative on a worker’s request.
  • Whether types of businesses can be deemed exempt from the law at any time by regulation, as the bill allows.
This week in the media, adding corporate manslaughter to the Bill is also being raised by Amy Adams, Justice Minister.

Parental Leave and Employment Protection – Rate of Parental Leave Payment

These adjustments to the Parental Leave and Employment Protection Act 1987 (the Act) come into force on 1 July 2015

The rate of parental leave payment payable to an employee is the lesser of —

  • $504.10 per week (as from 1 July 2014); and
  • the greater of — 100% of the employee’s ordinary weekly pay before the commencement of the parental leave; and 100% of the employee’s average weekly earnings.

The rate of parental leave payment payable to a self-employed person is the lesser of —

  • $504.10 per week (as from 1 July 2014); and
  • the greater of — 100% of the self-employed person’s average weekly earnings; and the minimum amount set under section 71OA of the Act.

The amount of $504.10 per week must be adjusted by 1 July 2015 by any percentage movement upwards in average ordinary time weekly earnings. These regulations adjust the amount to $516.85.

Vulnerable Children – Requirements for Safety Checks of Children’s Workers

These regulations, which come into force on 1 July 2015, are made under the Vulnerable Children Act 2014 and set out the requirements for safety checks of children’s workers.

The requirements for the first safety check of a children’s worker are:

  • a full identity check (which requires confirmation of identity either by using an electronic credential or by producing a primary and secondary identity document); and
  • a Police vet; and
  • the gathering of other information (less information is required to be gathered if the children’s worker is an existing employee or contractor); and
  • a risk assessment.

The requirements for a subsequent safety check of a children’s worker that is carried out within 3 years after a previous safety check are:

  • an identity check (which, if a person’s name differs from that on a primary or secondary document produced to confirm identity for a first safety check, requires a supporting name change document to be produced); and
  • a Police vet; and
  • the seeking of information from any relevant professional organisation or licensing or registration authority; and
  • a risk assessment.

Source: Westlaw NZ/Brookers online

Changes to Annual Company Returns

More detail in Companies Office annual returns

From 1 July, annual returns to the Companies Office must include extra information about company directors so if we manage your annual company return we will be asking you for extra information. The following is from a recent Business Insider Newsletter from www.business.govt.nz :

Filing an annual return will remain a quick and easy process, but you will need to take the time to gather the following details:

  1. Date and place of birth for each director of the company you’re filing the annual return for (don’t worry – this information will not be publicly available).
  2. Details of an ultimate holding company, if applicable, including where the holding company is registered. (If you’re unsure what an ultimate holding company is, check the shares and shareholders section of the Companies Office website.)

If this information is missing, the annual return will not be accepted and the company may be removed from the register.

Remember, by 28 October 2015, all New Zealand incorporated companies must have at least one director who lives in New Zealand, or a director who lives in Australia and who is also a director of an Australian incorporated company.

See Companies Act: what to do and when to do it  for more information and case studies

Business Banking to Broker

Anna McClure was our Business Banking Manager for a number of years when she worked at the ANZ Bank. We had a great relationship with her and were sad to see her leave the bank however we are delighted she is now working for a local business finding solutions for both personal and business finance.

If you need a mortgage to buy a new home or want to finance business growth opportunities then we have no hesitation in recommending you talk to Anna about your finance needs.

Here is some more about who she is and what she does:

Anna McClure has recently joined Assured Ltd after almost a decade in banking and finance and will be based in Montgomery Square, central Nelson providing financial advice and solutions under the Loan Market and Assured brands.

Looking for flexibility and a work life balance that suits her love of the outdoors and what the Nelson Tasman region has to offer has been a big part of this decision as well as being able to use all the skills and knowledge she has to help her customers grow their wealth.

Having a background in business and commercial banking Anna has a good grasp on business lending requirements and is able to translate a set of financial accounts to get the best outcomes for her customers.

She guarantees service with a smile and is happy to meet with her customers at their homes or work places at a convenient time for them. Anna has access to the major banks and also the ability to offer other solutions while negotiating the best finance package on her customers’ behalf.

If you’d like to contact Anna for a free appointment you can call her on 0800 500 223, 021 755 611 or email her at anna@assuredgroup.co.nz

Employer Win – Restructuring Valid

Employment news kindly provided by Chapman ER

A top coach made redundant from Swimming New Zealand after a poor performance at the Commonwealth Games has lost his claim of unjustifiable dismissal.

Funding of Swimming New Zealand’s High Performance programme is dependent on success measured by Key Performance Indicators (KPIs). The most transparent of those measures is podium success at pinnacle events around the world by the New Zealand swimming team. If the high performance programme is unsuccessful then funding is reduced and allocated to other more successful sports.

The national sports body restructured its high performance programme following poor performance at the Glasgow Commonwealth Games. In the lead-up to the Games, swimmers targeted for success at Glasgow were achieving slower times than previous personal bests.

David Lyles was employed as National High Performance Centre coach (Auckland) in 2013 however was made redundant after a comprehensive review of the New Zealand team’s poor performance.

The review looked at coaching structures and this led to the creation of new positions including a new national head coach role. This new position called for world class coaching capability to technically lead the national programme and high performance culture.

After consultation the restructure went ahead, and Mr Lyles unsuccessfully applied for the National Head Coach role.

Mr Lyles subsequently made a claim to the Authority that his dismissal was flawed, and that the newly created role of national head coach was effectively the same as his existing role.

However, ERA member Eleanor Robinson found the national head coach position was insufficiently similar for him to be automatically redeployed to it.

Legislation prohibits dealing with poor performance through restructuring and Robinson said there was no dispute over Lyles’ performance in his former role. Although the poor results of the high performance programme were the key trigger for the restructure Lyles himself did not argue the reason for the restructure. Mr Lyles agreed with the recommendation in a 2014 review to consolidate the two High Performance Centre Coach roles and create a new National Head Coach role – making Mr Lyles’s position redundant.

The ERA found the decision to disestablish Mr Lyles’ position was a genuine business decision.

Robinson found Swimming New Zealand provided him with all information necessary to provide feedback, and that Lyles had sufficient opportunity to comment on it before a decision was made.

The redundancy procedure, including the selection process for the new role, was found to be conducted fairly. Mr Lyles’ claims were dismissed.

This case highlights the benefits of taking the time to prepare well, of seeking advice on your intended process and of following the provisions of your Employment Agreements and policies. These measures will significantly reduce risks associated with handling the relatively sensitive situation of restructuring and redundancies.

Hopgood’s awarded region’s first Chef’s Hat Award

Congratulatoins to our client, Hopgood’s Restaurant.

It has been a great week for Kevin and Jane, their head chef Aaron  and their staff. Not only were they named as runner up for the Best Regional Restaurant Award at this year’s Cuisine restaurant Awards but they were awarded the region’s first Chef’s Hat, the New Zealand equivalent of a Michelin Star in Europe and America.

They have also been listed in sixth place on the 2014 Top 10 Travellers’ Choice Restaurants in the South Pacific, with the French Cafe in Auckland and Logan-Brown in Wellington being the only other New Zealand eateries making the cut.

What an outstanding effort from this fantastic Nelson restaurant business.

Rebecca Coram 2011 - Savage and Savage

Congratulations

Congratulations to Rebecca Coram, one of our Senior Accountants, on attaining full membership to the Institute of Chartered Accountants Australia & New Zealand.  Rebecca has worked very hard to achieve this goal and we are all very proud of her.

 

$168k for Privacy Breach

From Chapman Employment Relations latest newsletter:

The Human Rights Tribunal’s decision that NZCU Bayside breached the privacy of their previous employee Karen Hammond was not a surprise. The level of compensation however was staggering. The awarding of $168k compensation, surpassed the previous highest award by an astonishing $128k.

The company admitted to the breach, but their actions were extraordinary. Hammond had posted on her Facebook page a photo of a cake she had baked, iced with the words ‘NZCU F*** YOU’. Only people she had accepted as ‘Facebook friends’ could access the page. NZCU Bayside obtained through coercion, a screen shot of the photo and emailed it to four local recruitment agencies, along with contemporaneous phone calls warning against employing Hammond.

Additionally, the Chief Executive sent an email to staff disclosing information about Hammond. The company also placed severe pressure on Hammond’s new employer to terminate her employment, including stating that continuing to employ her would result in significant financial loss.

Hammond resigned from her new job on the basis it had become untenable for the company to continue with her there. She remained unemployed for 10 months until obtaining a position outside her chosen sector, and in a position considerably below her skill level. Hammond felt unable to apply for any positions that used recruitment agencies for fear of what they would say to prospective employers.

The tribunal determined the company was less than honest in their evidence. The evidence of two of their key witnesses was described as being defensive and in disarray, and the consequences of the breach downplayed by the company. Members of the management team also contradicted each other. In contrast the tribunal found Hammond and her witnesses to ‘be sincere and genuine individuals and their evidence unrehearsed, direct and frank.’ Although the Chief Executive did provide an apology, the tribunal said the apology was ‘delivered without any detectable note of sincerity.’

All of these factors were taken into account when the tribunal considered remedies. The award was made up of $38,350 in lost income, just over $15,500 for legal expenses, $16,177 for the difference in wages from the job she was forced to resign from and her new job, and $98,000 damages for humiliation, loss of dignity and injury to feelings. The tribunal described the breach as at the serious end of the spectrum, with the company’s responses at the hearing as contributing, and hence justifying the large damages award.

A New Zealand Collectible Art Show – The Framing Rooms: June 2015

The Framing Rooms are looking for expressions of interest in their second Collectible Art Sale.  It will feature New Zealand Artists and include traditional and contemporary work.  Their aim is to gather together a dynamic mix of artworks that people find exciting and that they would love to own.  They are able to exhibit up to 40 artworks at a time.

What is considered collectible?

Collectibility concerns factors such as the status of the artist, when in the artist’s career the artwork was produced, the condition the work is in, provenance and current trends.

Valuations will be very helpful in knowing what price a work should sell for. There is the possibility that Neil Roberts (experienced Fine Art Valuer based in Christchurch) can come to Nelson and offer this if a group of people are interested.

How The Collectable Art Sale will work

  • A catalogue will be available on our website and the gallery will show the artwork for 2 weeks.
  • Publicity will be organised including email marketing
  • There will be a preview day and an opening
  • The artworks will be sold on a fixed price basis.  This will be agreed on between the owner and The Framing Rooms.
  • When an artwork is sold and paid for it can be taken from the wall.
  • The Framing Rooms takes a 20% commission on sales and payment is made the week after the sale is over.
  • The owners of the artworks can be anonymous

Insurance : The Framing Rooms does have insurance but any artwork priced at over $1000 must have a valuation to be covered by our policy.

Their first Art Sale for Ann and John Hercus was very successful and really enjoyed by visitors to the gallery.  They are looking forward to working with other Nelson art lovers on this second event.

If you would like to be involved please email Gill Starling at info@theframingrooms.co.nz or call on 548 3991 or call into visit the gallery at 96 Collingwood Street (opposite The Free House).

Child Support Changes

Child support laws will change from 1 April 2015 and if you’re paying or receiving child support you should have received your new assessment or entitlement by now.

The formula that IRD uses to calculate child support now takes into account both parents income which in theory is a good thing, however the way it is calculated and apportioned has meant many child support assessments come with an unexpected significant increase.

The formula now takes into account shared care when it is 28% (102 nights a year) and over however you must provide a minimum of 35% (128 nights a year) care to receive child support payments.

The living allowance has also changed and from 1 April 2015 no longer include an amount for new partners. However, if others do rely on your financial support, for example a new partner and their children,  you can apply to IRD to have your living allowance reviewed.

It is worth checking that the income  and shared care IRD has based your assessment on is correct. If your income has dropped by more than 15% from the amount you were assessed on, you can now estimate your income and IRD will reassess your payments.

If your child support changes from 1 April 2015 it may also affect your Working for Families entitlement.

To sum it up the results are quite different from how IRD portrayed it, and whilst we can’t change the formula we recommend you check that the information included in your assessment is correct.