Broad range of new employment laws

Anthony Drake, Senior Associate | Tuesday 15 February 2005

The end of 2004 saw the introduction of a number of changes to employment law that will directly affect employers. 

These include the introduction of the Criminal Records (Clean Slate) Act 2004, the Smokefree Environments Amendment Act 2003 and changes to the Parental Leave and Employment Act 1987. 

Criminal Records (Clean Slate) Act 2004

Employers will need to be aware of the consequences that the Criminal Records (Clean Slate) Act 2004 will have on employment procedures.  The Act, which came into force on 29 November 2004, entitles eligible individuals to state, when questioned, that they have no criminal record. 

Whether a job applicant is eligible or not depends on the following issues:

• the length of time since the last sentencing - seven years must have elapsed since the individual was convicted;
  
  
• there are a number of positions where the Act will not operate and these include: positions involving national security, judges, JPs or community magistrates, the police, probation or security officers, and positions involving the care, protection and education of a child or young person; and
  
  
• if an individual has been convicted of a number of specified offences (predominantly sexual offences, set out in section 4 of the Act) they will not be eligible to state they have no criminal record.

The nature of the job applicant's sentence also has bearing on whether they are eligible:

• the individual must not have received a custodial sentence;
  
  
• the court must not have made an order in respect of the individual under the Criminal Procedure (Mentally Impaired Persons) Act 2003;
  
  
• the individual must not have been disqualified from obtaining a driver's licence; and
  
  
• where the sentence or order required a monetary payment, this payment must have been made in full or deemed to have been remitted.

In cases in which one of the above sentences has been imposed (or where the monetary payment required at sentencing has not been paid), the length of time since sentencing will be irrelevant and the potential employee cannot state that they have no criminal record. 

However, in specified circumstances, an individual can apply to the District Court for an order stating that the rehabilitation period need not be completed, or that the Act should apply even though a custodial sentence was issued.  These circumstances are set out in section 9 of the Act. 

Penalties

Section 18 of the Act makes it an offence for a party to attempt to require an individual to disregard the effect of their rights under the Act.  Employers are not able to include clauses requiring prospective employees to provide all details of their criminal history if they are eligible under the Act.  The penalty for breaching section 18 is a fine not exceeding $10,000.

Smokefree Environments Amendment Act 2003

The Smokefree Environments Amendment Act 2003, which came into force on 10 December 2004, has had a number of wide-ranging effects on employers and employees, especially those working in the hospitality industry. 

Smokefree areas in the workplace

This amendment to the Act requires that employers take all reasonably practicable steps to ensure that no person smokes in the workplace, whether they be employees or people entering the workplace. 

"Workplace" is defined as the internal areas occupied by the employer and also include communal areas such as lifts and stairwells.  Modes of transport including specified types of ships, trains, aircrafts and the internal areas of other vehicles are also covered including operating taxis.  Taxis are defined as a workplace and the prohibition applies to both drivers and passengers. 

There are some exceptions to the areas that constitute a workplace which are restricted to places of residence such as the employer's home, motel and hotel rooms, or sleeping compartments on transport.

Smokefree areas in public places

The licensees of licensed premises, casinos and gaming machine venues and the operators of restaurants must take all reasonably practicable steps to ensure that no person smokes anywhere on the premises that is not an open area.

Exceptions

There are some exceptions to the smoking restrictions which include:

• work vehicles that are not used by members of the public, but all users of the vehicle must have agreed with the employer that smoking is permitted in the car; and
  
  
• in hospital care, disability care and rest home facilities the Act allows for the use of a dedicated smoking room.  The room must be enclosed and equipped with specified ventilation systems.  Dedicated smoking rooms can only be used by patients or residents of the facility, not employees or visitors. 

Retail requirements

The Act also creates new requirements on retailers of smoking products and dictates how such products must be displayed for sale.  Smoking products must not be visible from the outside of the retailer's business and products must not be displayed on counter tops or similar surfaces.  Limits are also placed on the quantities of smoking products that can be displayed in retail outlets other than tobacconist shops and these are set out in section 23A.

Penalties

If an employer, manager or occupier of relevant premises fails to take all reasonably practicable steps required by the Act, or fails to otherwise comply with the provisions of the Act they may be subject to penalties.  The applicable penalties are set out under section 17.

Parental Leave

Changes to parental leave rights under the Parental Leave and Employment Protection Act 1987 came into force on 1 December 2004. 

The Act provides new entitlements for unpaid leave from work for birth mothers, their partner/spouses and adoptive parents on either, the birth of a child or the adoption of a child under the age of six. 

The period of paid leave increased on 1 December 2004 from 12 weeks to 13 weeks and will increase again in December 2005 to 14 weeks.

There are also new entitlements for leave depending on an employee's length of service and the number of hours worked per week.  The qualifying period of 12 months has now been reduced to six months.  An employee must have worked for the same employer for an average of at least 10 hours per week (including one hour every week or 40 hours every month) for the immediately preceding six months. 

Parental leave may begin up to six weeks before the date of birth or adoption, at the discretion of the employer. 

The Act also allows for three other types of parental leave.

The first, Special Leave, is for a period of up to 10 days for the pregnant mother, before maternity leave begins.  This is to be taken for pregnancy-related reasons, such as ante-natal classes or appointments with a doctor or midwife.

The second is Partners' Paternity Leave as follows:

• up to two weeks' for the mother's partner on the birth or adoption of a child;
  
  
• up to one week for the mother's partner on the birth or adoption of a child.

Partners' Paternity Leave of one week may be extended where:

• the mother transfers the entitlement to parental leave payments to the partner, in which case the period of partners' paternity leave is extended to match the length of time the payment is received by the partner; or
  
  
• the employee adopts a child alone, or adopts jointly and is nominated as principally entitled to receive parental leave payments. The  partners' paternity leave is extended to the lesser of 13 weeks or the time the employee receives the payment.

The third type of parental leave is Extended Leave of up to 52 weeks, less any maternity leave taken or period of extended partner's paternity leave taken, that can be shared between the parents, if they are both eligible.

This leave is only available to those parents who have qualified for leave on the basis of the hours test for the previous 12 months of employment with their employer.

All leave must be taken in the first year after the birth or adoption.

Leave can be taken for second and subsequent children provided the eligibility criteria are met. However, you cannot be eligible for another period of parental leave unless the expected date of delivery or adoption is at least 12 months after your return to work from a previous period of parental leave.

Each partner must take the leave in a continuous period.

The leave can be taken at the same time or separately to suit the needs of the parents and the child.