Holidays Act – could change finally be on the horizon?

The use of Artificial Intelligence (“AI”) in the workplace is likely to become increasingly common as technologies advance and benefits become proven and trusted. One AI development that looks set to be eagerly embraced by business is the generative pre-trained transformer model designed by developer OpenAI and used in its Chat GPT product (as well as in competing products, such as Google’s Bard and Microsoft’s Bing Chat). In a nutshell, Chat GPT is a large language model chatbot that is able to generate content based on requirements set by the user.  It essentially searches the internet to find information that matches your query and can then produce written content including articles, emails and even social media posts, as well as images and graphics. While the use of this technology may create huge benefits for your workplace, there are a few key points that you should be aware of before you start: If you plan to use Chat GPT in the workplace, you should open a Chat GPT Enterprise account (or its equivalent). The Enterprise account will provide greater speed, data security and privacy than a standard individual account.  Yes, it will cost more, but if your employees use Chat GPT from their own account there is a risk that sensitive/confidential information may be leaked and could become available to anyone.  If you use the Enterprise level service, any information you input or work product received will remain private to you and will not be used by the model to provide work output for third parties. Furthermore, if an employee uses their own Chat GPT account to generate work product, it is the employee who will be the copyright owner of the work product – not the employer. This may create the issue of having to assign or license the right to use the content, or the employee having the ability to share the work product with third parties without requiring your consent to do so.  It may be simpler to have copyright clearly belonging to you from the start. Another important point is that the content that you receive may not always be correct or suitable! Chat GPT looks for any available information to help it formulate its work product.  That means it will not always retrieve accurate information, and in some cases could be basing its work product on false information.  Furthermore, the style of the response may not be suited to you or your customers.  Chat GPT is not yet able to distinguish between what might be a great communication to an American consumer from one that would work better in a New Zealand context. If you are thinking about using AI in the workplace, it really is a good idea to put policies in place so that you and your employees understand the parameters and effects.  It is an ever-evolving world of technology so you will need to ensure that policies (and employment agreements) are regularly reviewed and updated to meet your needs. If you require any assistance with your policy drafting and implementation, our employment law team is here to help (and will provide you with a much better-tailored service than Chat GPT!)

On Monday 11 December 2023, the new three-party Coalition Government confirmed that the Fair Pay Agreements Act 2022 would be repealed, and that the use of 90 day trial provisions will be extended beyond small businesses. It is the Government’s intention that these changes will be implemented through a Member’s Bill which will be passed under urgency before Christmas. There are also other proposed changes to employment law that have been signalled by the new Government. 90 day trials Currently the use of 90 day trial periods, which allow an employer to dismiss an employee without being required to provide any reasons for the dismissal, is limited to businesses with 19 or fewer employees. The change will mean trial periods are available to all employers when taking on a new employee regardless of the number of employees. If done correctly, dismissal pursuant to a trial period clause means an employee is unable to raise a personal grievance for unjustified dismissal. The change restores the position as it was under the previous National Government. The new Government considers that this change will allow greater opportunities for employees as employers could then take a risk on someone who “might not tick all the boxes in terms of skills and experience but who has the right attitude, without the risk of a costly dismissal process”. It is important to note that employers will still be required to comply with the existing provisions under the Employment Relations Act 2000 which relate to trial periods, such as ensuring the trial period is limited to new employees, and agreed to in writing before the employee starts work. We suggest employers wanting to utilise 90 day trial periods touch base with our employment team to ensure that these clauses are correctly drafted for inclusion in employment agreements and meet all requirements to allow them to be used as intended. Fair Pay Agreements Fair Pay Agreements were introduced by the previous Labour Government to try and improve the collective working conditions and wages of particular sectors. It allowed workers to negotiate collectively, in an attempt to increase their negotiation and bargaining power. The Government has now confirmed that this will be repealed. Currently six sectors have successfully applied to start negotiations (including security, hospitality and cleaning) but none have yet received a Fair Pay Agreement so it appears these will not advance any further. It is important to note that even with the change, collective bargaining will still continue under Part 5 of the Employment Relations Act, just without the formal process provided by the Fair Pay Agreements Act. Other signalled changes The Coalition Agreement entered into by the new Government also signals its intention to progress several key changes to personal grievances. This would include removing eligibility for an employee to claim remedies, including financial compensation, for a personal grievance where the employee is at fault. Additionally, the Government plans to put in place income thresholds for personal grievance claims. If an employee earns over a certain amount then they will be statutorily barred from raising a personal grievance claim. The specifics of this are still to be confirmed, however may take a similar form to a Bill introduced by the National party while in opposition (the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill) which included a provision allowing employment agreements to contain a clause preventing an employee from raising a personal grievance if that employee earnt over the set threshold. It is unclear at this stage what the Government intends to set the income threshold at. Independent contractors are another area of employment law which the Government has indicated it wishes to reform. Under the Coalition Agreement “contractors who have explicitly signed up for a contracting relationship can’t challenge their employment status”. This would be a big shift away from the current legal position which allows the Courts to look beyond the written agreement and at the true nature of the relationship between the parties. This will mean that those wishing to enter into an independent contractor arrangement will need to be careful as to how this is documented to ensure it accurately reflects the parties intentions. Other smaller changes indicated by the new Government include stopping work on the income insurance scheme, allowing for moderate increases to minimum wage, a commitment to providing greater protections against migrant worker exploitation, reforming health and safety law, and increasing the annual cap on workers under the Recognised Seasonal Employer scheme (likely a welcome announcement to the horticulture industry). If you would like further information regarding the upcoming changes, or to amend your employment agreements to include trial periods, please do not hesitate to get in touch with a member of our specialist employment law team.

Given the current economic conditions facing employers in New Zealand, it is predicted that pay rises for employees will be at far lower levels than those seen during the past two years. However, employees are also aware of the relatively tight labour market and are themselves facing increased living costs, which may mean they are willing to look for other employment opportunities if their expectations are not met. This can provide a difficult situation for an employer. The need to keep pay increases to a minimum will need to be balanced against the need to retain valued employees and limit the costs of recruitment and training for new employees. So, is there anything an employer can offer that won’t negatively impact the bottom line but might keep employees motivated and committed? Well, one possible solution could be the introduction of “Summertime Hours”. Put simply, Summertime Hours represent a set period of time during those (hopefully) warm, sunny months when employees are able to end their working day a few hours earlier to make the most of the (fingers crossed) great weather. For example, Summertime Hours could be specified as being a 3.00pm finishing time on Friday afternoons during the months of January and February. The upside to Summertime Hours? Firstly, your employees will be even further convinced that they are working for the right employer, meaning that more employees will choose to stay in your employment and will not be tempted to look elsewhere for alternative roles. Secondly, it will boost staff morale on the whole, and a happy workplace leads to better results all round. Furthermore, this initiative is unlikely to cost you anything. It is very possible there will be little impact on productivity levels because employees will show their gratitude by ensuring they put in extra effort throughout the rest of their week as a show of appreciation (and to ensure the Summertime Hours happen again next year). As was seen with the introduction by some employers of four day weeks, employees continued to have the same level of output even when working within the condensed time frame. Finally, it is a great way to boost your public reputation as a good employer, meaning you may be first choice for potential employees looking to be hired. There may of course be reasons Summertime Hours would not work. For example, it may be difficult for some businesses to implement Summertime Hours if there are certain employees whose roles necessitate them remaining in the workplace until the usual close of business time (while everyone else is flying out the door with their beach towel slung over one shoulder). You don’t want to create division as this may lead to frustration and feelings of unfairness, but workarounds might be found (ie. those particular employees take the time off at a different time or day of the week). Another reason Summertime Hours may not work is if they become an administrative hassle to organise (ie. if employees want to take advantage of the early finish, but request for it to occur on a different day to the one you were willing to offer). This may mean that more time and effort goes into the implementation of the policy than was initially expected. Overall, Summertime Hours do seem able to provide a real benefit to employees that will boost the morale of the whole workplace, while not adding to wage and salary costs and having no detrimental impact on productivity. As such, it may be an idea worth serious consideration. The key to successful implementation of a Summertime Hours Policy is to ensure that the terms of the policy are clear and workable. The first step might be to raise the idea with your managers and/or employees and get feedback as to whether it would be something they think is a good idea (note: we predict they will say “yes”), how they see it working in your workplace (ie. the most appropriate day, how they will plan their time to ensure all required work is completed as usual), and to get ideas about what the parameters should be (for example, it will only happen on a Friday afternoon, and only until the end of February). If you want to discuss a possible policy for your employees, or any other employment related policy ideas that you might have, we are happy to help and will ensure you have a clear and well-drafted document for everyone in your workplace to follow. If you have any general employment related queries or topics of interest that you would like us to cover in our upcoming articles, please let us know!