Friday, March 29, 2024

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Pick up the phone and ask a lawyer before making decisions on employment matters, Invercargill lawyer Janet Copeland, of Janet Copeland Law, said at a Dairy Women’s Network conference workshop on Limiting Legal Liabilities.
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“Don’t think of it as a cost. Seeking advice is an investment and is usually a lot cheaper than not doing it,” Copeland said.

“I don’t want to be the ambulance at the bottom of the cliff. It just gets too depressing.”

Employment on dairy farms was covered by eight separate pieces of government legislation from the Minimum Wage Order to the Holidays Act (2003) and even the Human Rights Act (1993), she said.

“There’s a lot that can go wrong from failing to use an employment agreement, averaging of wages, discrimination and not following the legal process for discipline, to performance management and redundancy or restructure.

“To limit your liability make sure you have a sound recruitment process so the right person is appointed to the role, keep up-to-date employee records including a signed employment contract and pay records and have employer’s liability insurance.”

She said there were three types of employee – permanent, fixed-term and casual.

“And it is not what is stated in the employment contract that makes people fall into these different categories. If they are employed as a casual and they have been working the same hours every day for several months then they are probably permanent and will legally be viewed that way.”

Permanent staff could be either full-time or part-time and had regular, predictable work patterns. They must be employed until they resigned or were dismissed and must be given annual holiday pay as well as sick and bereavement leave after six months of continuous employment.

Fixed-term staff were those who had an end date on their contract, which must be based on reasonable grounds.

“A calf rearer could be employed on a fixed-term contract but I don’t believe general dairy staff should be, even if the sharemilker who is employing them has a fixed end date on their contract with the farm owner. You could argue the sharemilker is still going to milk cows after the contract is over, just on a different farm. The nature of the work has not altered. The cows haven’t died. They still have to be milked.”

Casual staff were those who had no guarantee of work, an irregular work pattern and no expectation of ongoing employment.

Signed individual employment agreements with each employee must be kept and penalties for not having one have recently increased to $20,000 for a body corporate and $10,000 for an individual.

At the bare minimum agreements must have the names of the parties, the job description, the location and hours of work, remuneration, services available for resolving employment relationship problems, and employment protection provision in relation to other employees for sale, transfer and contracting out and reference to being paid time-and-a-half if working on a public holiday.

“But your employment contract with your staff should also include clauses about whether secondary employment is allowed, health and safety, abandonment, staff benefits such as the rules around the use of vehicles and cell phones provided and a drug and alcohol policy,” Copeland said.

Before asking an employee to sign an employment contract they must be given at least one to two days to seek independent advice about it before signing.

“If the employee has any issues with the contract discuss them and try to come to an agreement.”

Houses supplied as part of the employment must be as a Service Tenancy Agreement otherwise they fall under normal tenancy rules.

“The tenancy exists as an incident of the contract of service between the tenant and the landlord.”

Farmers also needed to be aware of the new health and safety legislation which covered not only employees but all people who worked onfarm.

“A PCBU, which is a person conducting business or an undertaking, is responsible so if a farm owner had a contractor come on to the farm who then employed another contractor to do a specific job as part of that who then got a subcontractor in who employed the person who got injured on the farm, then all would be liable.

“PCBUs must, as far as it is reasonably practicable, maintain the work environment, provide safe plant and structures, safe systems of work and safe use, handling and storage or plant, structures and substances.”

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