What to expect at mediation

An Employment Advocate can be very helpful at mediation as they can do the talking for you as your representative.

If you are wondering what a meditaion is like you can ask us for free and we’ll talk it through, there is no obligation to take us with you, we are happy to have a chat about what your individual situation is and see if we can help you. 

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If you would like to talk to us about supporting you at mediation please complete our contact form. 

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Take an Advocate to your Mediation

If you have raised a Personal Grievance with your Employer or previous employer (within the 90 day deadline), and you have not received a satisfactory response you can take the grievance to mediation.

What is mediation?

Mediation services are available to Employees as a method of solving employment problems before they go to  the Employment Court (the ERA).  When needing to identify the issues, resolve disputes and reach an overall outcome a third party called a ‘Mediator’ is available to help.

A successful mediation aims to save time, energy and potential costs & losses. This is a semi-formal, confidential option which allows parties to negotiate and focus on interests, agendas and opportunities to move beyond the issue at hand. We wouldn’t take you to mediation without first assessing you have a good case and being confident that we can get you your desired outcome.

Why should you take an Employment Law Advocate to mediation?

We are experts in New Zealand Employment Law. We know your rights, we have a lot of experience with these matters, and we know what financial (and other) compensations are appropriate.

Most often the employer will bring an Employment Lawyer or Employment Advocate themselves and this can put you at a disadvantage both emotionally and intellectually.  You can represent yourself, but knowing your rights and being able to stay calm and open minded during the process is important. 

To ensure the best outcome we recommend you seek representation by someone who has legal experience such as an advocate, lawyer or even a community leader.  Lawyers usually charge by the hour.  Because the mediation process can be quite time consuming it can be very expensive to hire a Lawyer.  Our Advocates are legal experts, with specialised knowledge of employment law. We can represent you all the way to the Employment Court if necessary.   Our fees are much less than it would cost to use a lawyer.  We will take your case to mediation if we think we can get you a financial outcome. You don’t pay us unless we do.

Our Employment Advocates  will:

  • help you prepare for mediation,
  • gather facts,
  • set out the law
  • identify the most appropriate solution for the issue,

We attempt to obtain a fair compensation based on the facts presented and the ways in which your employer may have breeched your rights under NZ Employment Law.

Having an Advocate represent you does not mean that you will not be involved.  Keeping involved in the process will be beneficial to voice any concerns you may have, and give the other party a chance to consider what you are saying. This can be one of the most important parts of your mediation.

You are also able to bring along a support person to your mediation should you wish. The role of a support person is to provide you with emotional support throughout the process.

Unsuccessful Mediation;

Both sides get to agree on the outcome.
Most of the time mediation is successful.  But occasionally things take a little longer.  

If no agreement is reached the case may be escalated to the Employment Relations Authority (ERA). 
Sometimes the ERA Member will direct you back to mediation. 

At the ERA the final outcome is decided by the authority member (Judge) and neither party will have a say in the settlement. The danger in taking disputes to the ERA is the chance of loss and that you may be ruled against. In some cases costs may be awarded against you, if you are seen to be the person that is in the wrong. 

See our page on ERA to get further information on this option.

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Paid Breaks

Law changes to rest and meal breaks

 On this page:

Overview

The changes to the rest and meal break provisions balance the importance of these breaks for employees with the practical needs for each workplace. The current strict rules are replaced with a more general right for employees to have a reasonable opportunity to rest, eat, drink and deal with personal matters. The new provisions seek to encourage employers and employees to negotiate, in good faith, rest and meal breaks, without compromising business continuity and flexibility.

The Act says:

  • when employers can make reasonable restrictions on rest and meal breaks
  • that employers can specify when breaks are taken, if employees and employers cannot agree on when and how long breaks should be
  • that an employer is exempt from giving breaks – when employees agree to reasonable compensation or where the employer cannot reasonably give the employee rest and meal breaks
  • that reasonable compensatory measures are to be provided when an employer is exempt from the requirements to provide breaks
  • rest breaks must be paid
  • any other law that requires an employee to take rest and meal breaks takes priority over the rules in the Act.

Employees and employers can’t contract out of the right to rest and meal breaks – an employment agreement that required an employee to take no breaks, and did not provide compensatory measures, would exclude an employee’s entitlements. Therefore that part of the agreement would have no effect. In other words, an employee either gets a break or a compensatory measure; the employer cannot fail to give either.

Entitlements to breaks

An employee is entitled to rest and meal breaks that:

  • give the employee a reasonable chance during their work period to rest, refresh and take care of personal matters
  • are appropriate for the length of the employee’s work period.

There are no specific rules for how long, or when, rest and meal breaks should be. Employers and employees should bargain in good faith over the timing and length of breaks.

Common practice is that rest breaks are 10–15 minutes long and meal breaks are at least 30 minutes long, but this varies across industries and occupations. If an employee is unsure what is appropriate, they can check with their industry association or union on what the general practice in the industry is.

When an agreement is reached, then breaks should be taken in line with that agreement.

Where meal breaks are unpaid, the parties can agree that the meal break will be for a minimum length (eg 30 minutes) and employees can take a longer break (eg up to 1 hour) if they wish. The employee would still need to complete their agreed paid hours of work if they take a longer break than the agreed minimum.

If employers and employees cannot agree on the timing and duration of breaks, then the employer can set reasonable times and lengths for breaks. An employer can arrange breaks so services or production continues, taking into account the operational environment or resources, and employees’ interests.

Good practice for determining what breaks are provided, when and for how long, takes into account:

  • how long the employee’s work period is
  • the nature of the employee’s work
  • any health and safety issues related to the work, for example fatigue
  • the time of day or night that the employee’s work period starts – eg can any meal breaks match normal meal times?
  • the interests of the employee – eg to allow enough time for rest, refreshment and to take care of personal matters
  • the employer’s operational environment or resources – eg does the employer need employees to take their breaks in stages or according to a roster, in order to continue production or services, or do all employees need to take their breaks at the same time?
 

Where there is no agreement between employer and employee

The employer must give an employee a reasonable chance to negotiate the timing and length of the employee’s rest and meal breaks, and try to reach agreement in good faith.

Where the employer and employee cannot reach agreement, the employer may set reasonable times and lengths for breaks so the employer can maintain service or production. What is reasonable will depend on the employee’s interests and the operational environment or resources.

Example – An employer and employee agree to the timing and duration of breaks

Lesley works at a fast food restaurant on a 5-hour shift. She and her employer have agreed that she will have a 30 minute meal break after she has worked 2.5 hours.

Example – An employer has specified the timing and duration of a break

Paul is a machine operator in a factory and he works an 8-hour shift. Paul wanted to forgo his 30 minute lunch break but his employer identified that this may cause fatigue and could become a hazard, and said Paul must take this break. In addition, Paul has two 15 minute rest breaks – one after he has worked 2 hours, and the other after he has worked 6 hours.

By contrast Kate works as a cleaner for 2 hours every afternoon. She does not have any breaks because the duration of her work period is so short that it is appropriate to take no breaks.

When an employer can restrict rest and meal breaks

Employers can only restrict rest and meal breaks when the restrictions are reasonable and either of the following condition is met:

  • The restriction is necessary, considering the nature of the employee’s work – in this case the employer can specify what restrictions apply, OR
  • The restriction is agreed to by the employer and employee, whether in an employment agreement or not.

The law allows restrictions to breaks because sometimes it is reasonable that an employee cannot fully enjoy their breaks without interruption, or may need to partially focus on work during a break. However, a high standard is set for when restrictions are possible. Employers and employees should discuss in good faith whether restrictions are reasonable and necessary.

Restrictions on an entitlement to rest and meal breaks are only permitted when it involves:

  • the employee continuing to be aware of their work duties or (if needed) continuing to do some of their work duties, during the break
  • the employee’s break being interrupted in certain circumstances
  • the employee taking his or her break in the workplace or at a specified place within the workplace.

Restrictions that are reasonable might include:

  • to allow healthcare workers to deal with an emergency
  • for a sole-charge worker to respond to customers
  • where another team member needs urgent help.

Reasonableness will depend on the circumstances of the workplace. For example, it may not be reasonable to require an employee’s break to be interrupted where an employer has failed to roster enough staff on to cover a normal busy period of work.

Example – An employer and employee agree to a restriction on a break

Catherine is the manager of a pre-school centre. She discusses and reaches agreement with the staff that if another staff member needs urgent help with a child, it is reasonable (given the nature of their work) that a break can be interrupted. Staff agree to restricted breaks, so occasionally their breaks can be interrupted.

Example – An employer specifies a restriction on a break

Justin works as a nurse at an aged care facility. When on night duty he is the sole nurse. Justin’s employer has said that he will need to continue to be aware of his work duties, or if needed, continue to do some of his work during his breaks; this can include interrupting his break. For example, he may need to check on a patient if a call button lights up during his break. The restrictions are reasonable and necessary given the nature of the work.

How do the rules on breaks affect employers’ duties under the health and safety laws?

The changes do not affect an employer’s duties under the health and safety laws to control hazards (including an individual’s behaviour) that could cause harm to themselves or anyone else. Where physical or mental fatigue is a hazard, an employer must address that hazard.

Where an employer considers that breaks are a good way to avoid fatigue identified as a hazard, the changes do not stop an employer providing those breaks. Employers must also make sure employees’ health and safety is not undermined by:

  • any restrictions on breaks
  • the timing or duration of breaks
  • compensation instead of breaks taken.

Employers and employees can agree to no rest or meal breaks

An employee and employer can agree to compensation instead of breaks. The law requires employers to compensate employees if no break is given where a break would be appropriate.

 

When an employer is not required to provide breaks

An employer does not have to give rest and meal breaks if breaks cannot reasonably be given, considering the nature of an employee’s work. But the law requires employers to compensate employees if this happens.

What is appropriate compensation?

There is some flexibility about what kind of compensation an employer can give, but it must always be reasonable.

The law also says that giving an employee time off work instead of a break is reasonable if:

  • the employee gets the same amount of time off as they would otherwise have taken as a break
  • the time off is given on the same basis as the break that the employee would have otherwise taken. For example if the break that was not taken wouldn’t have had restrictions, then the compensatory break also cannot have restrictions.

Employers can give other types of compensation, as long as they are reasonable. Compensation is reasonable if it is of a similar value as the break.

Example – An employer and employee agree to compensation instead of a break

Chris is a waiter in a restaurant, he works from 6pm till 10pm. Chris and his employer have agreed he won’t stop for a rest break. Chris’s employer pays him until 10.10pm every night as compensation for their failure to give him a break.

Examples – Compensation instead of a break

Bryce works as a sole-charge nanny doing afterschool care. He works from 3pm to 6pm. To compensate him for not getting a break because of the nature of his work, he leaves work 10 minutes early each night when one of the parents gets home, but is still paid for the full 3 hours’ work.

Jim is a fruit picker on an hourly wage. One afternoon a hailstorm was forecast, so Jim worked through his 10-minute break. As a compensatory measure his employer said Jim could finish 10 minutes earlier and still be paid for that 10 minutes.

Example – Building up time off work to take on one or more occasions

Jo works in a café for 6 hours a day. She has a half-hour meal break during her work period. Although an additional 10 minute rest break would be appropriate for the duration of her work period, Jo does not get a rest break. Instead, Jo and her employer agree she can accumulate 10 minutes of time to take off in lieu for each shift she works. At the end of her 5-day week she leaves 50 minutes earlier, but is paid her normal wage.

Example – Compensation of proportionate value

Paul is a machine operator in a factory and he works an 8-hour shift. Paul earns $25 per hour before tax. Paul’s employer asks Paul to skip his 30-minute lunch break and pick up some parts for the machine instead. Paul’s employer offers to pay for lunch to eat on the way to pick up the parts. The compensation is proportionate if it is worth more than 30 minutes pay ($12.50 in this case).

Employees and employers cannot contract out of the legal right to rest and meal breaks or compensation

Employers and employees are not stopped from agreeing to better entitlements to rest and meal breaks. Good practice would be to record these in an employment agreement or similar.

Employers and employees cannot contract out of the legal right to rest and meal breaks or compensation. Nor can they contract for restrictions on breaks other than those allowed by the Act. Any part of an agreement that tries to do so has no effect.

An employment agreement that required an employee to take no breaks, and did not provide compensatory measures, would exclude an employee’s entitlements. Therefore that part of the agreement would have no effect.

Example – contracting out provision with no effect

John works in a retail shop and he works an 8-hour shift. John’s employer asks him to sign an agreement that he won’t take his 30 minute lunch break, but the agreement does not provide for any compensation. Even if John signs the agreement, that part of the agreement would have no effect.

However, any other law that requires an employee to take rest and meal breaks in a certain industry prevails over the rules in the ER Act.

Two other laws that require employees to take rest and meal breaks:

Land Transport Rule: Work Time and Logbooks 2007 – this Rule says when people covered by the work time requirements in Part 4B of the Land Transport Act 1998 must take rest breaks. The explanatory text for the Rule says, “In general, Part 4B of the Act applies to a driver of a vehicle that requires a Class 2, 3, 4, or 5 licence, or is used in a transport service (other than a rental service), or that is a vehicle used to carry goods for hire or reward”. This includes truck, taxi and tour bus drivers.

Civil Aviation Act 1990 – in Greenslade v Jetstar Airways Ltd [2012], NZERA Auckland 436, the Authority decided that a Jetstar pilot must take breaks in line with the Australian Civil Aviation Safety Authority’s Civil Aviation Orders. This decision was specific to the facts in this case; it is likely to apply to only a small number of airline flight crew members.

 

What happens to existing rest and meal break provisions in employment agreements?

Existing rest and meal break provisions in employment agreements will continue, unless:

  • for IEAs – the employer and employee agree to change the agreement
  • for collective agreements – there is agreement to change the collective agreement using its variation clause.

If you feel that you are not receiving your legal entitlements for breaks – our company can assist you in dealing with your concerns.

Source: MBIE

Personal Grievance

What is a Personal Grievance?

personal grievance is a type of complaint that an employee may bring against a current or former employer.

The Employment Relations Act gives all employees the right to pursue a personal grievance if they have any of the following complaints:

An employee has a right to raise a personal grievance case under the Employment Relations Act 2000. This must be done within 90 days of when the grievance occurred or came to his or her attention. However, the employer may consent to a personal grievance being raised after that time.  If the employer doesn’t consent the employee may apply to the Employment Relations Authority to be allowed to raise the personal grievance after the 90 day time frame.

Raising a Personal Grievance is an opportunity for  an employee to seek compensation for unfair treatment at work, or for being unfairly dismissed.

How we can help

If you are not sure if you have a good case to bring a personal grievance or if you don’t know where to start give us a call :

We will assist you in managing the grievance or complaint by

  • Advising you about the law, the processes and the possible outcomes;
  • Representing you in discussions with the employer’s lawyer;
  • Speaking on your behalf at mediation;
  • Preparing your evidence for an investigation by the Authority and the Court;
  • Representing you at the Authority and the Court
  1. Contingency Fees (i.e. No Win- No Fee)

The majority of our cases are undertaken under a contingency or “no win – no fee” basis. In simple terms this means that if we do any work for you and we are not able to achieve a successful result (ie you end up in the same position as you were in at the stage our company became involved in the case) – then there will be no charge for the services we have provided. However if we do any work for you and do achieve a successful result (i.e. you end up in a better position than you were in at the stage our company became involved in the case) – then there will be a charge for the services we have provided.

 

  1. Non Contingency Fees (Time and Attendance fees)

We also offer non contingency fee services such as representation at disciplinary or investigation meetings or for situations where a financial outcome is not being sought and our fee for this service is $250 + GST per hour.

Employment Agreements – IEA

Good employment relationships occur when everyone has clear expectations about the role, working conditions and employment rights.

Every employee must have a written employment agreement.

This can be either an individual agreement or a collective agreement which sets out the terms and conditions of employment.

There are some provisions that must be included in employment agreements by law, and there are also a number of minimum conditions that must be met regardless of whether they are included in agreements.

We are surprised at the amount of callers who have no employment agreements in place.

Under s63A of the Employment Relations Act 2000 an employer must provide an employee with a written employment agreement, and penalties may be awarded under s64 if no written employment agreement is provided.

Employees should be given a reasonable amount of time to look over their agreements and return them. An employer must ensure that the agreement is signed and returned to them before you start work.  This is particularly important if the Agreement is relying on a 90 Day Trial Period being in place. 

For example, a standard agreement clause allows the employer to deduct wages in lieu of notice. This is not enforceable without your signature on the agreement. The reason for this is because there is a separate piece of legislation that protects employees’ wages under the Wages Protection Act 1983. Under the Act you may not make deductions from employees’ wages without their consent. The employment agreement provides the consent that is legally needed to carry out any deductions in employees’ wages.

Our company is able to check your employment agreement to ensure that it meets the required standard – and also to resolve situations where your employment contract has been breached.  Contact us if you have no employment contract and need our help to deal with your employer.

Call us on 0800 669 466 and let us connect you with the right people and proccesses to help you or email us using the form provided below.

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