Robotics Plus acquisition by Japan’s Yamaha Motor Company

This article was published for the Bay of Plenty Times, Friday 14 February 2025 It seems like with every change of government comes the inevitable slew of changes to employment law. The Act Party’s focus on employment law reform has made this truism even truer for the Coalition Government. Big changes have already been made.  The ink was barely dry on the election results when the Coalition Government binned the Fair Pay Agreements framework proposed by the previous Labour Government.  Next up was that classic political football, 90-day trial periods, with the Coalition Government re-opening them back up to employers regardless of size (the Labour Government had limited them to employers with fewer than 20 employees). So what morsels can we look forward to on the Coalition Government’s menu in 2025?  The Holidays Act was temporarily in the crosshairs, with plans to replace it with an entirely new Act, but this has now been sent back to the drawing board by Minister for Workplace Relations, Brooke van Velden.  On the other hand, work is continuing on reform of the Health and Safety at Work Act, following consultation which concluded late last year.  We can expect more detail of proposed changes later in the year. The Minister announced a new “gateway test” for determining whether an individual is an employee or a contractor last year.  This will significantly alter the way that the Employment Relations Authority approaches this question.  As it stands, the Authority looks beyond the written agreement in place and assesses the “real nature of the relationship”, to determine whether a worker labelled as a contractor is actually an employee.  2024 provided a high profile example, when the Court of Appeal ruled that Uber drivers were employees, not contractors.  The changes proposed would mean that, in the first instance, the Authority would instead first consider whether: The business has a written agreement with the worker specifying they are an independent contractor; The business does not restrict the worker from working for another business (including competitors); The business does not require the worker to be available to work on specific times of day or days, or for a minimum number of hours – or if it does, the worker can sub-contract the work; and The business does not terminate the contract if the worker does not accept an additional task or engagement. If these criteria are all met, then the worker will be automatically deemed to be a contractor.  If one or more of the criteria are not met, only then will the Authority apply the “real nature” test as usual.  Our take is that the criteria need a lot more clarification before employers can enjoy the certainty that the changes are designed to provide.  Hopefully this will come when the bill containing the changes is introduced later this year. Another major proposed change on the cards for 2025 is the introduction of an income threshold above which an employee would lose the statutory right to raise an unjustified dismissal personal grievance.  Cabinet has agreed the threshold base salary will be $180,000.  The Minister has said that this is directed at offering senior employees and their employers more choice over their employment arrangements.  Employees and employers can agree to opt back into the unjustified dismissal personal grievance regime, or agree their own dismissal procedures.  Despite this, we would expect to see fewer protections against unjustified dismissals for senior employees as a result of this change.  One question requiring clarification is whether these employees will retain the ability to challenge their dismissal via another type of claim; e.g., a common law claim for breach of contract. The Coalition Government is also targeting remedies for personal grievances, with proposed changes to disqualify employees who pursue successful personal grievances from being awarded remedies where their behaviour has amounted to “serious misconduct”.  Further, employees would be disqualified from being reinstated to their previous role, or from receiving compensation for hurt and humiliation, where their behaviour has “contributed to the issue”.  Other proposed changes included allowing remedies to be reduced up to 100% for other types of bad behaviour, a requirement that the Authority consider if the employee’s behaviour obstructed the employer’s ability to meet their legal obligations, and “increasing the threshold for procedural error” in cases where the employer’s actions against the employee are considered fair.  This last point is particularly interesting, given we are concerned that an unintended consequence of these changes could be that employers would no longer be required to meet any fair process standards as long as they can establish they had a good enough reason to dismiss an employee.  We look forward to this issue being clarified as well, when the bill containing these changes is introduced later in 2025.

In a recent decision, the Employment Court has ruled in favour of High Performance Sport New Zealand (HPSNZ), overturning a decision made by the Employment Relations Authority in January 2024. In its initial ruling, the Authority had determined that HPSNZ was required to engage in collective bargaining with The Athletes Cooperative (TAC), a union representing both the individual and collective interests of its athlete members.[1] The Court heard evidence from a number of current and former athletes, including several who have represented New Zealand at international events.[2] Their evidence highlighted deficiencies in the current funding system, particularly the lack of employment protections for athletes and the insufficient prioritisation of their interests and well-being.[3] The key legal dispute centred on the circumstances in which a union may validly initiate collective bargaining with an employer in accordance with s 40 of the Employment Relations Act 2000 (the Act).[4]  The Court ruled that for a union to validly initiate bargaining, it must be in an employment relationship with an employer.[5] Based on the context and purpose of s 40, the Court determined that such an employment relationship can only exist when members of the union are employed by the employer.[6] The Court referred to the Supreme Court’s decision in AFFCO[7] where the word “employees” was held to have a broader meaning than in s 6 of the Act and covers persons seeking employment in some situations where those persons are not strangers to the employer in contractual terms.  While TAC is a registered union and HPSNZ is an employer, the Court found that TAC’s members were not “sufficiently connected” to HPSNZ in a way that would establish an employment relationship for the purposes of s 40. It clarified that HPSNZ deals directly with the National Sporting Organisations and not the athletes directly and as such any reference to HPSNZ in the athletes’ agreements is limited only to funding and not an employment relationship.[8] The Court’s decision clarifies the legal criteria for applying s 40 and the circumstances under which a union can validly initiate collective bargaining with an employer. TAC has sought leave to appeal the decision to the Court of Appeal.[9] As a further comment, the decision highlights the complexities of the relationship between HPSNZ, National Sporting Organisations and athletes in elite programs, in particular the application of funding and employment protections afforded to athletes. The final outcome of this matter will no doubt have a significant impact on the landscape of the New Zealand sports environment. _____ [1] The Athletes’ Cooperative Inc v High Performance Sport New Zealand Ltd [2024] NZERA 43 (Member Anderson). [2] High Performance Sport New Zealand Ltd v The Athletes’ Cooperative Inc [2024] NZEmpC 250 at [41]. [3] At [42]. [4] At [1]. [5] At [88]. [6] At [88]. [7]  AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017] NZSC 135, [2018] 1 NZLR 212 at [75]. [8] n 2 at [89]. [9] Dana Johannsen “Athlete union’s legal bid for collective bargaining with High Performance Sport NZ overturned” (16 January 2025) Radio New Zealand <www.rnz.co.nz>.

Swearing? We are all guilty of doing it to some extent, but what about in the workplace? Is it acceptable and if so, to what degree? Can your employer discipline you for an outrage of expletives? In some circumstances and in certain workplaces, dismissal may be wholly warranted, while in others, it may not, notwithstanding that it is the same conduct in question. Confused? Context is key alongside a myriad of factors to be taken into consideration. Ultimately it will come down to what is fair and the workplace culture. The issue of “fairness” is addressed in the Employment Relations Act 2000 which tells parties whether a dismissal will be fair or not. For instance, in the case of Waihape v AFFCO New Zealand Limited [2017] NZERA 13 several mitigating factors were taken into consideration, including the context of the situation, the nature of the workplace and the relationship between the parties involved. In Waihape, it was determined that given the nature of the workplace, several individuals regularly swore in their day-to-day banter and an employer would struggle to justify taking action for a staff member using bad language in those circumstances. The evidence showed that management failed to crack down on similar offensive language in the workplace. The Authority quoting from precedent said: “It is well established that an employer will fail to justify a dismissal where communications do not appear to be greatly out of character with others apparently condoned by management in the workplace.” Overall, case law suggests that if an employer wishes for certain standards to be upheld, it will need to ensure there are policies in place to make employees aware that swearing is unacceptable. Furthermore, employers will need to demonstrate that it does not tolerate swearing in the workplace by enforcing the policy when it is breached. It is both best practice and prudent for employers to ensure that the expected and acceptable standards of behaviour are addressed and imbedded into any training and induction processes. Above all else, it is imperative that employers do not single out an individual for the use of course language while letting other employees get away with the same. The key takeaway is, like with all disciplinary matters, a fair procedure must be followed. An employer will need to establish the facts and review any offensive language in the context of the circumstances alongside the company’s relevant policies. Before taking disciplinary action, an employer will need to carefully consider whether a verbal warning or written warning is more appropriate. Dismissal would only be justifiable if the employee’s conduct warrants gross misconduct and summary dismissal. Whether you are considering taking action against an employee or you are an employee facing disciplinary action yourself, we recommend getting cogent advice first. Speak to our employment law team today.