NEW ZEALAND Law and Practice Contributed by: Liz Blythe, Troy Pilkington, Emma Peterson and Craig Shrive, Russell McVeagh
5.2 Role of Trade Unions or Workers’ Councils
5.4 Remote Working Several legal issues arise when considering the pos - sibility of remote working by employees. First, it is important to consider whether an employee is asking to work from home or whether the request is being made by the employer. An employer may only require an employee to work from home if the employ - ee agrees. Consent could be obtained in the “place of work” clause in an employee’s employment agree - ment. Although an employee can ask to work from home (and an employer has an obligation to consider this request), an employee will require permission from their employer to work from home. An employee can make this request in the context of a request for flexible work; however, an employer is only required to genuinely consider such a request and cannot be compelled to agree. Second, if an employee is to work from home, the following legal considerations apply: • Health and safety obligations: The employer will need to be satisfied that the employee has a safe place to work, and this may require a workstation review or the provision of equipment. • Employment obligations: An employer must put systems in place that monitor hours of work in order to ensure minimum rates of pay are met. • Confidentiality obligations: Depending on the nature of the work, the employer may wish to ensure that the employee is able to comply with confidentiality obligations in a home environment.
If an employer contemplates outsourcing that could lead to redundancies, it must consult with affected employees prior to making a decision. This is the case even if the new service provider would offer employ - ment to all affected employees on the same terms and conditions of employment. Should the obligation to consult be triggered, the employees may decide whether they involve their union. However, if employ - ees belong to a union, the union would typically be involved in consultation as the representative of affected employees. There is no independent obliga - tion to consult with a union although there may be a contractual obligation to do so under a collective agreement. Unlike other larger jurisdictions, New Zealand does not have workers’ councils. 5.3 Offshore, Nearshore and Onshore There has been no change in the frequency of – or cus - tomer preference for – onshore, offshore or nearshore resources in outsourcing transactions in New Zealand. There is typically always a desire by local organisa - tions to ensure a minimum onshore presence of sup - plier personnel in New Zealand, even when contract - ing with large overseas outsourcing service providers. The requirement varies from client to client; however, for larger-scale outsourcings, a requirement of at least 20% onshore personnel can be expected.
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