Changes To Employment Law Are Here – With More To Come

Employers need to be aware of what changes are here and what lies ahead, particularly in relation to employees’ leave and the report of the Holidays Act Working Group.

Holidays (Bereavement Leave for Miscarriage) Amendment

Employees will now have the right to take up to three days’ paid bereavement leave if they or their partner experiences a miscarriage or stillbirth. People planning to have a child through surrogacy or adoption are also eligible, if the pregnancy ends by miscarriage or stillbirth.

The bereavement leave can be taken at any time and for any purpose relating to the death, miscarriage or stillbirth, and does not have to be taken straight away or on consecutive days.

Employees are not required to produce proof of pregnancy, miscarriage or stillbirth.

The Holidays Act working group has made several recommendations in relation to annual leave:

Annual holidays will still be provided and calculated in “weeks” or portions of weeks, paid at the greater of:

• Ordinary Leave Pay
• Average weekly earnings over last 13 weeks
• Average weekly earnings over last 52 weeks
• Gross earnings definition to include all cash payments received, except direct reimbursements for costs incurred. That would include discretionary bonuses.

There will be more “prescriptive processes” to determine how much leave needs to be taken for an employee to have a period of time away from work (i.e. where it is not clear what a “week” is for the employee)

• For employees paid pay-as-you-go holiday pay (PAYG), a clearer definition of what ‘intermittent or irregular’ means, and employers will be required to review PAYG employees every 13 weeks to check eligibility for PAYG.
• Employers will not be able to pay PAYG for employees on fixed term contracts of less than 12 months.

There are also key recommendations for other forms of leave:

FBAPS (family violence, bereavement, alternative holidays, public holidays and sick leave) leave will still be calculated in days, paid at the greater of:

• Ordinary Leave Pay
• Average Daily Pay over last 13 weeks

There will be more processes to determine when a particular day is an “otherwise working day” for FBAPS purposes (e.g. if an employee has worked 50% or more of the corresponding days in the previous four or 13 weeks)

Key recommendations – eligibility:

• Employees will only become entitled to four weeks’ annual holidays after 12 months’ continuous employment, but can take leave in advance on a pro-rata basis (e.g. could take two weeks’ leave after working for six months).
• Bereavement leave and family violence leave are available from the first day of employment.
• Three days’ bereavement leave could be used to cover more family members, including cultural family groups and more modern family structures and would reflect a “sense of loss”.
• One day’s sick leave is available from the first day of employment, with an additional day per month of employment until the full entitlement is reached, which will be 10 days per annum.

An exposure draft for consultation is to be published mid/late 2021 – we will keep you updated as some of these concepts need to be more fully explained.

Timeframes for changes

• Bill already introduced to increase sick leave
• Late 2021 for introduction of Matariki holiday
• Early 2022 for main Holidays Act

Our team are across the issues that employers are facing this year. If you need assistance to comply with what is coming, contact our team and we will be happy to help you.