Welcome to the second edition of the Federated Farmers Employment Bulletin, your dedicated employment newsletter. We would like to highlight once again, the importance of having valid contracts and agreements in place for all employed staff, especially as written employment agreements are a legal requirement. Should an employment issue arise, it is much easier to resolve and protect yourself when the terms and conditions of employment are agreed upon in writing when you initially hire someone, saving a lot of hassle, frustration and expense if anything should go wrong.

This month's edition covers some great topics from sick leave to ATV safety and working with chemicals when pregnant. Again, if you have any questions about any of the articles in this newsletter, or any other employment related questions, please don't hesitate to call the free Federated Farmers employment helpline on 0800 327 646.

When the employee is taking leave for the first week of a non-work accident, sick leave may be used as there is no ACC entitlement in these circumstances. However, if an employee has a work related accident, the employer has to pay 80 percent of the employees ‘first week wages' and can't require the employee to take that time off as sick leave. If an employee has a work related accident and remains on weekly compensation paid by ACC, the employer can't require the employee to take time off as sick leave. Though, if an employee is receiving weekly compensation from ACC the employer has no obligation to pay the employee. By agreement, the employer can top up the ACC payment from 80% to 100% and reduce the employee's sick leave entitlement accordingly.

If you provide an accommodation allowance to employees who are KiwiSaver members, remember the accommodation allowance is deducted from your employee's gross pay prior to calculating the compulsory employer contributions (CEC). The IRD has a new process and they are updating their records for those employers who are deducting an accommodation allowance. When the new process is in place you'll no longer receive a letter every month from the IRD querying the under-deduction of your CEC. The IRD will contact you after 12 months to check if you're still providing an accommodation allowance or if your circumstances have changed. If they can't contact you by phone they'll send a letter.

What can an employer do about an employee who has told a number of people at work that they are job hunting? An employer cannot approach them and attempt to arrange an end date if the employee has not yet given notice that he intends to leave the job, but it is important to confirm whether or not the employee has actually resigned from his position. An employer can however talk to the employee about how their recent behavior has begun to disrupt other staff members. Though any attempt to have an employee fix a date for resignation could be interpreted as an invitation to resign and could lead to the employee resigning immediately and bringing a personal grievance on the grounds of constructive dismissal.

WHEN EMPLOYEES ARE RENTING FROM AN EMPLOYER

This is called a service tenancy and is where an employer provides an employee with a property to live in during their period of employment. Service tenancies are fully covered by the Residential Tenancies Act, but have special rules covering rent paid in advance and notice to quit the tenancy.

NOTICE PERIODS

In a service tenancy the tenancy usually ends when the employment ends and the employer has given two weeks notice to leave the house. If an employer rents a property to a non-employee, which is usually used for housing an employee and the Tenancy Agreement says the property may be needed for an employee on 42 days notice, then, when the property is needed for that purpose, 42 days notice can be given.

RENT PAYMENTS

Where a landlord is also the tenant's employer and takes the rent out of the tenant's pay, they can also take rent out of any holiday pay to cover the holiday period.

Farmers who require employees to use all terrain vehicles (ATVs) are legally required to ensure that employees are well trained in their use. A honey production company was fined $78,000 and ordered to pay reparation of $60,000 to the family of an employee killed when the ATV he was riding, without previous ATV experience and without a helmet, overturned. The employee was given a basic demonstration in use of an ATV before going to the farm, where the farm owner gave him a further demonstration on the farm ATV that he was to be riding. The ATV was later found overturned on the road near the entrance to the farm owner's driveway and the employee, who had been riding without a helmet, died in hospital from the head injuries he received. No one saw the accident. Employers have an obligation to ensure employees are adequately supervised and instructed in their safe use. Obviously an approved ATV helmet is a prerequisite to safe use of these vehicles, given that they are the best way to prevent serious head injuries in the event of an accident. The lesson from this case is that farmers who use ATVs must ensure that their employees wear an approved ATV helmet and are properly trained in ATV use.

What does the law say about the need for first aid in workplaces? Under the Health and Safety in Employment Regulations 1995, employers are required to take all practicable steps to ensure that first aid facilities are provided at every place of work under the control of the employer and that there are suitable numbers of facilities and that they are suitable for the purpose for which they are used. First aid facilities must also be maintained in good order and condition and employers must ensure that all employees have access to these facilities in a way that is convenient to them. The Health and Safety in Employment Act 1992 doesn't contain any specific provisions requiring first aid facilities, but it imposes a duty on employers to take all practicable steps to ensure the safety of employers and others in the place of work. In some circumstances this may be achieved by the provision of first aid equipment, facilities, training and information. Employers are also required by section 19B of the Health and Safety in Employment Act to involve employees in health and safety matters, including matters referred to in sections 6 to 13 of the Act.

Many employers will be aware of the case reported on 28 May 2010 headed, $20K compo for worker sacked over pregnancy. The Employment Relations Authority did order the employer to pay $10,080 in lost wages, $5,703 for lost paid parental leave and $3,500 for hurt and humiliation. The employer believed it was justified in dismissing the worker due to redundancy, caused by the downturn. An appeal is being considered.

So what lessons can we take from this? If an employer is faced with a potential redundancy situation and at the same time the employee cannot perform normal duties, for example, using chemical sprays which pose a serious threat to the health of the newly forming infant, what should they do? There are options. One is to use the rights given to an employer under the Parental Leave Act, section 14, to place an employee on parental leave immediately. The advantage is that the employer has completely fulfilled their legal requirements under the Health and Safety in Employment Act. Redundancy can then be considered at a latter time, if need be, and the mother retains her rights to the payments Government makes available for families. There are some conditions around setting a date for parental leave, but they are not too onerous. An employer can set a date for the employee to start parental leave if she is unable to perform her work safety of herself or others, is incapable of performing her work adequately and if no other suitable work is available.

Remember, this is a major health and safety issue which needs to be dealt with immediately. If the parties cannot agree on the employee starting parental leave immediately, as can be done under s.12 of the Parental Leave Act, the employer may utilise the provision discussed above. The employee can also seek the direction of a midwife or doctor who can also order the ceasing of work, under s.13.

Alternatively, the other option could be redundancy if there is a downturn in work, which can justify a dismissal, whether or not there is a pregnancy.