Implications for Franchisors under The new Health and Safety at Work Act

The new Health and Safety at Work Act 2015 comes into force on 4 April 2016 and carries with it maximum fines of $3,000,000 for non-individuals and up to $600,000 or a term of imprisonment of up to 5 years for individuals for the most serious offences.  

The new Act has a much wider reach than the existing Health and Safety in Employment Act 1992 and has the potential to impose duties on franchisors not just in respect of their own workers or work place.  If a Franchisor directs or influences its franchisee's workers, if it subleases or licences premises to its franchisees or supplies goods or plant or equipment which are used in the work place, then it will have additional duties and obligations under the new Act.

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New regulations to support the new Health and Safety at Work Act

Published in Inside Tourism, Issue 980, 3 June 2014

THE MBIE recently issued a lengthy discussion document detailing proposals for new health and safety regulations due to take effect from April 2015.

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Trials and Errors

One year on from trial periods becoming available to all employers for new employees, we review two important cases which provide clarification, and some warnings, to employers wishing to use trial periods.

In Smith v Stokes Valley Pharmacy (2009) Limited, the Employment Court held that, among other things, as Ms Smith had worked for one day for the new employer before she signed her employment agreement, she was not a "new employee" when she signed her employment agreement, and the 90‑day trial period contained in her agreement was therefore ineffective. On that basis alone, the Employment Court found that Ms Smith was able to challenge her dismissal.

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Holding Employees to Account: Restraint of Trade Clauses

The Employment Court has upheld restraint of trade clauses in a number of cases recently, demonstrating that the days when restraints were widely regarded as "not worth the paper they're written on" are over.

The starting point for restraints is that they are unlawful as being anti competitive and accordingly against public policy. However, where the employer has a genuine "proprietary interest" to protect, such as, trade secrets, pricing, client, or other confidential information, the Courts can and will hold employees to their restraint obligations.

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Justification Test: Is "Could" different than "Would"?

The objective test at Section 103A of the Employment Relations Act 2000 (Act) for justification of a dismissal or other action by an employer changed on 1 April 2011, to "...whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred" (ie the word "could" has been substituted for the former "would" in an otherwise materially identical subsection).

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Employee Overpayment - An employer's guide of what not to do

The Employment Court has recently considered an employer's ability to reclaim money from an employee who had been substantially overpaid in error. In Foai v Air New Zealand, the Court overturned an earlier ruling of the Employment Relations Authority and declined Air New Zealand's attempt to recover $42,635.40 from Mr Foai. The decision may surprise many employers, and should serve as a warning that it is critical to ensure staff are paid correctly.

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