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From the President

2009 is coming to a close and many of us will be looking forward to 2010 with our sights set on an improving economy with business having the confidence and capacity to increase headcount.

While 2009 has been a difficult year for our industry, I am sure we took advantage of the conditions to see what improvements and efficiencies could be made within our own businesses.

As an industry we must maintain high standards so over time we become even more of a strategic partner to businesses throughout the country.

I would like to thank you all for your support this year and we look forward to engaging with you all in the New Year and continue to provide services that add value to your business.

On behalf of the RCSA NZ Council, we wish you all a merry and safe holiday season..

Ian McPherson APRCSA
President

Special Announcement

Launch of Partnership with Recruitment and Consulting Services Association (Ltd)

The first launch event of the Partnership between the Ministry of Social Development and the Recruitment and Consulting Services Association (Ltd), and signing of the agreement, was held in Auckland on 16 October. Work and Income regions and recruitment agencies attended and were invited to sign the agreement by Hon Paula Bennett, Minister for Social Development and Employment.

Many of the jobs filled by private sector recruitment agencies match the employment needs of Work and Income clients. It is intended that the new agreement will make the vacancies listed by the agencies more accessible to our job seekers, while at the same time fulfilling employers’ recruitment needs.

Recruitment Practice Guidelines have been developed to outline processes for Work and Income and recruitment agencies to follow, and will be made available as soon as they have been finalised.  

  Business Solutions Contact News

The RCSA Business Solutions Contact provides free client service agreement templates to Corporate Members HERE

Guidance Notes for Members:

  Implied Terms of Business and “Standard Industry Practice”  READ MORE

Memos for Members:

  Court fines On-Hire firm $40,000 and Says Supervisor May be Necessary READ MORE

 

Frequently Asked Questions

How does the RCSA view solicitation in terms of business approaches and attraction?

READ MORE

 

General News for Members

Maintaining Ethics in Recruitment - Jenny Durno APRCSA, Ethics Committee Member

In a recruitment office near you:
Scenario One
‘Good morning John.  How’s the ad response going?’
‘Hi Boss, yeah, okay; I am getting good people who fit the spec but the client won’t meet them as he won’t take people of their profile. It’s hard explaining to people.’
‘Just tell them the job is filled or that they are too senior for the role.’
‘But…’

Scenario Two
‘Hi Miss Candidate, yes, we can help you, but for me to put you forward for any of our jobs, which are all exclusive to us, you will have to agree to only work with me.  Sign here.’
‘But I am working with another recruiter on a job I like at ABC.’
‘Call them and tell them I will look after it for you.’

Scenario Three
‘Right John, that’s agreed then! Welcome aboard!  Now, how soon can you upload all the contacts you brought from your last recruitment job?  Someone else can call them – they’ll never know.  And thanks for that processes manual you brought with you. Saves us a lot of work, eh?’

Hands up those who have seen these things happen?  What did you do about it? What did your boss do about it?

Guess what? The clients know this is happening and they know who is doing it. How do you think ‘John’ would feel in his pitch about how ethical and professional his company is if he knew the client sitting in front of him knew what was happening back in the office? 

You know what is right and wrong; you don’t need a long article to explain it to you. This note is just a reminder that it matters:

• For your own values – is this behaviour something you want to be aligned to?
• For your company’s image – if the marketing collateral says ethics and professionalism, what do the actions say?
• For the recruitment industry – ever wonder why we are battling with our image down there among the car sales people?
• For the candidates – this is just what you do for a job – for them what you do makes a big difference to their lives.
• For the clients – they are paying good money for you to do a professional job – they trust you. Be worth it.

Have all your consultants completed the RCSA Code for Professional Practice online – it’s free Code for Professional Conduct module in LearnR

On-Hired Employment Status Muddied Further – Andrew McComish APRCSA NZ Region Councillor

Case law in NZ about the on-hire industry is relatively thin on the ground so it was with some anticipation that I picked up the recent Macdonald v Allied Workforce and Ontrack ERA decision. On the face of it, this decision may appear to provide some comfort to on-hire employers. However it introduces extra layers of complexity that may not necessarily be relied upon in the future.

Mr Macdonald was engaged by Allied Workforce under their Individual Casual Employment Agreement. He was initially placed on a one-shift assignment with Fonterra and then onto a range of other short term assignments. He was subsequently placed as a Trainee Track Repairer with Ontrack. He remained in this assignment for eight months until it was terminated – after which he took up other assignments for Allied with another client. The Ontrack work was terminated as Ontrack introduced a Digger Operator.

Unlike a previous ERA decision, this case does not focus on Fixed Term agreements. This time the ERA was asked:

• To determine the real nature of employment between Allied and Macdonald
• Should an employment agreement be implied between Macdonald and Ontrack
• Was MacDonald unjustifiably dismissed from his employment and if so what remedies are available
• Are there issues with respect to Holiday pay (I will address this in the next article below).

Evidence was presented that showed that during his time with Ontrack Allied essentially provided a payroll function. They paid his wages, his holiday pay, deducted PAYE and provided him with a payslip.

On the other hand Allied delegated day-to-day supervision to Ontrack; Ontrack paid a tax free allowance directly to Macdonald, Ontrack provided Macdonald with training in relation to his Trainee role; supplied him with equipment, clothing and PPE and also gave him company documents produced solely for Ontrack employees. It was the Ontrack supervisor who effectively advised Macdonald of the termination of his assignment.

Allied had no communication with Macdonald over the 8 month period.

In an interesting interpretation of case law the ERA found that

• That the real nature of employment was that Macdonald was an Employee of Allied.
• On the facts it could not be implied there was a relationship of employment between Macdonald and Ontrack
• The agreement between Allied and Ontrack concluded as anticipated which meant Macdonald was not unjustifiably dismissed.

Employment Agreement Clauses: They’re Enforceable!

We should not need reminding that when we negotiate an Employment Agreement, be it with our own on-hired workers or on behalf of our clients for permanent recruitment that the agreed clauses create obligations.

This became apparent in a recent Employment Relations Authority decision where Mr Painter, an English tradesman was recruited in the UK by Canstaff, a Christchurch on hire agency. The tradesman signed up to an Individual Employment Agreement and one of the clauses provided for: “minimum hours of work shall be not less than 40 (forty) hours per week …” An additional clause was “It will come into force on 1 July 2007 and will remain our agreement until it is replaced or either of us terminates the employment.” He was also to be paid at a rate of $20 per hour.

The employee did not actually arrive in New Zealand until December 2007 at which stage he worked on an initial six day assignment for a client at $18 an hour; though the assignment was extended till May 08 when the employee took annual holidays in advance until 2 June 2008. There was some dispute around what work was offered to the employee and what work he accepted after that date. It also appears some work was available at $13 an hour. There was a suggestion that some actions by the employee breached his obligations to the agency. There also appears to be dispute over communications between the consultant, the employee and the agency owner - but insufficient to affect his claim. However it appears the employee worked intermittently from 2 June to 19 September.

The employee went on to claim 451 hours pay for the period 2 July to 19 September when his employment ceased. There appears to be no claim for the difference between the $18 paid and the $20 in the employment agreement for the initial period of work. The ERA agreed and awarded him $9,080 plus an amount for outstanding holiday pay. Holiday Pay was to be calculated on the basis of total gross earnings so the $9,080 would form part of that calculation.

Pay-as-you-go Holiday Pay

S28 of the Holidays Act provides, under certain conditions, for the payment of annual holiday pay to be paid as part of an employee’s regular pay. I have previously pointed out there is potential difficulty with this provision – especially if an assignment ends up being ongoing.

We now have a bit of clarity on the matter with the recent Macdonald v Allied decision where the ERA was also asked if holidays had been paid correctly.

Mr Macdonald had a number of assignments with Allied and ended up on an 8 month assignment with Ontrack. As part of his regular weekly pay he was paid 8% of gross earnings as annual holiday pay.

The ERA appeared to briefly consider this issue and found that Mr MacDonald’s work, at the beginning of the assignment could not be described as intermittent or irregular. Therefore S28 did not apply.

The ERA ordered Allied to pay Mr. Macdonald 8% of his gross earnings (which presumably includes the already paid 8% PAYG) from the time he commenced the assignment with Ontrack.

ACC Levies: Proposed Changes

Recently ACC proposed the following changes to industry levies.

	Current Work Levy	Proposed Work Levy	% change
78610	0.18	0.32	77.8%
78620	0.18	0.32	77.8%
78621	2.2	3.53	60.5%
78622	1.0	1.69	69.0%
86131	1.15	1.88	63.5%
Average NZ Levy	0.75	1.18	57.3%

	Current Residual Claims	Proposed Residual Claims	% Change
78610	0.62	0.72	16.1%
78620	0.32	0.41	28.1%
78621	1.14	1.41	23.7%
78622	0.62	0.77	24.2%
86131	0.28	0.35	25.0%
Average NZ Levy	0.56	0.71	26.7%

The RCSA has researched the issues behind the proposed increases and canvassed Members views. In response to the survey it is apparent that 80% of respondents indicated their clients were going to either keep their existing staff levels or increase staffing levels. This means more levies for ACC.

78% indicated clients would hold existing pay rates while 19% indicated increasing pay rates. This means steady or improving levy income for ACC.

Within the Employment Services industry Members indicate their injury incident rates were either remaining the same or decreasing. This indicates we are a safer industry and improving industry.

84% indicated they would either support, or would like more information, on an idea to perhaps work alongside ACC to reintegrate injured workers back to paid employment.  75% of Members indicated ACC’s rehabilitation should be opened up to competition if this could reduce levies.

And 90% of Members felt the Residual Claims levy should remain at the existing level and paid until such time as the Account is fully funded rather than face an increase in Levies.

Our findings suggest that ACC’s Accounts are not in as bad a position as indicated by the media or consultation documents. While economic growth is unlikely to be bullish growth is still anticipated. The need to increase levies, certainly by the levels proposed by ACC does not appear to be supported by the environment we will face in 2010/11. Consequently the RCSA has recommended that ACC do not increase levies in any of the four employment service categories.

It is also apparent that there is a move towards opening up certain aspects of ACC to a competitive environment. Some may remember that we have been through this back in 1999. I do not think we can expect as good a result as we did last time around – but regardless it is now time for Members to start thinking about how they can best position themselves for competition in ACC.

Thank you to the 100 plus Members who responded to the Hot Spot survey – the submission was lodged with the ACC and RCSA will keep you posted with respect to outcomes. In the meantime we encourage Members to prepare for some increase in levies effective from 1 April 2010.

READ SUBMISSION HERE

Public Holidays

It is that time of year when we need to be thinking about the festive season and how we are going to manage holiday entitlements. This is a complex issue but in brief we remind Members that:

- an entitlement to Annual Holidays does not become due until a person has clocked up 12 months service. Any holidays requested and approved before this 12 months are considered to be Annual Holidays in Advance.

- The payment of a Statutory Holiday only becomes an entitlement if that day would otherwise have been a working day for the employee. So:

• If an assignment finishes on Thursday 24 December the employee is not due any payment for the Christmas or New Year Statutory Holidays.
•  If an employee has commenced an assignment and its going to finish sometime in the New Year then the statutory days would be days that would otherwise have been worked – so you will need to pay the person for those days.
• If a person works, say part time on Tuesdays, Wednesday and Thursdays, they are not due payment for Stat Hols because these days are not usual working days. 
• You may wish to close down parts of your business over this period which means there is no work available. You need to give 14 days’ notice to your employees of your intention to shut down.
• If a person works on a statutory holiday they are entitled to pay at T1 ½ as well as a further Alternative Holiday which may be taken at some point in the future.

This is a complex time of year so we encourage Members to be quite clear on the entitlements that are going to fall due and how they will be paid. This also means consultants need to be very clear on how clients are going to be charged so that your accounts don’t take an unexpected hit during this time. Consultants also need to be aware of the conversations they are having with candidates, any obligations that may be taken from those conversations and any consequential entitlements that may subsequently arise

RCSA and Open Polytechnic

RCSA, in partnership with Open Polytechnic, is pleased to offer Accredited Professionals and Corporate Members the opportunity to take up further learning and development opportunities.

Members choosing to study with Open Polytechnic will receive a 25% discount off student tuition fees.  Study may be work related, or for personal interest; chosen from the nearly 1350 courses available.  These range from NZQA approved courses to Diploma and degree level programmes.

Most Open Polytechnic students are 25 or older and balance full or part-time career with their studies. Study materials are delivered to the door or, for some courses, on the Internet via the Polytechnic’s Online Campus. 

Tutors are easily contactable by freephone or email for guidance and support.  The Online Campus helps keep students in touch with tutors and fellow students, and also provides access to the Polytechnic’s library and learning support services.

Click here to discover the range of courses and study options available.

To receive the 25% discount, enrolments must be completed on the RCSA pre-coded enrolment form and review the Guide to Enrolment. The FAQ document provides further information about how the discount can work for you.

For a copy of Open Polytechnic "Learning for an Open World Prospectus 2009”, contact Customer Services, ph 0508 650 200 or email CustomerServices@openpolytechnic.ac.nz

WorkPro joins the remaginet BusinessR program

WorkPro is an e-learning and information management solution, centralising a range of pre-employment processes to reduce the effort and time required to ensure a candidate is work ready. WorkPro and RCSA have worked closely over a number of years and now WorkPro joins the network of BusinessR suppliers who bring technology solutions with time and cost efficiencies to RCSA Members.

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